United States v. Rentz

• Decision Date: 03 February 2015
• Docket Number: No. 12–4169.,12–4169.
• Citation: 777 F.3d 1105
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Philbert RENTZ, Defendant–Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

777 F.3d 1105

UNITED STATES of America, Plaintiff–Appellant

v.Philbert RENTZ, Defendant–Appellee.

No. 12–4169.

United States Court of Appeals, Tenth Circuit.

Feb. 3, 2015.

Diana Hagen, Assistant United States Attorney (Carlie Christensen, Acting United States Attorney, with her on the brief), Salt Lake City, UT, for Plaintiff–Appellant.

Jeremy M. Delicino, Delicino Lorenzo, LLC (Elizabeth A. Lorenzo, Delicino Lorenzo, LLC, Salt Lake City, UT, and Stephen R. McCaughey of Salt Lake City, UT, with him on the brief), for Defendant–Appellee.

Before BRISCOE, Chief Judge, KELLY, LUCERO, HARTZ, TYMKOVICH, GORSUCH, HOLMES, MATHESON, BACHARACH, PHILLIPS, and MORITZ, Circuit Judges.^*

GORSUCH, Circuit Judge, joined by LUCERO, TYMKOVICH, HOLMES, BACHARACH, and MORITZ, Circuit Judges.

ON REHEARING EN BANC

Few statutes have proven as enigmatic as 18 U.S.C. § 924(c). Everyone knows that, generally speaking, the statute imposes heightened penalties on those who use guns to commit violent crimes or drug offenses. But the details are full of devils. Originally passed in 1968, today the statute says that “any person who, during and in relation to any crime of violence or drug trafficking crime ... 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 ... be sentenced to a term of imprisonment of not less than 5 years.” 18 U.S.C. § 924(c)(1)(A). That bramble of prepositional phrases may excite the grammar teacher but it's certainly kept the federal courts busy. What does it mean to “use” a gun “during and in relation to” a drug trafficking offense? The question rattled around for years until Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), and even now isn't fully resolved. What does and doesn't qualify as a “crime of violence”? The better part of five decades after the statute's enactment and courts are still struggling to say. Cf. United States v. Castleman, ––– U.S. ––––, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014) ; United States v. Serafin, 562 F.3d 1105, 1110–14 (10th Cir.2009). And then there's the question posed by this case: What is the statute's proper unit of prosecution? The parties before us agree that Philbert Rentz “used” a gun only once but did so “during and in relation to” two separate “crimes of violence”—by firing a single shot that hit and injured one victim but then managed to strike and kill another. In circumstances like these, does the statute permit the government to charge one violation or two?

This circuit and virtually every other has held that for each separate § 924(c)(1)(A) charge it pursues the government must prove a separate crime of violence or drug trafficking crime.¹ The government admits this burden and no one asks us to revisit it. But what about the statute's discussion of uses, carries, and possessions? Must the government also prove a separate one of those for each separate § 924(c)(1)(A) charge it brings? Though they vary in their approach to the question, the Second, Fifth, Seventh, and D.C. Circuits all seem to suggest the answer is yes, while the Eighth Circuit has (but only arguably, as we shall see) said no.² We agreed to hear this case en banc to answer the question for ourselves.

The answer is consequential. If Mr. Rentz properly faces only a single § 924(c)(1)(A) charge he could receive between 5 and 10 years in prison for it. See 18 U.S.C. § 924(c)(1)(A)(i)-(iii). But if, as the government contends, it may bring a second § 924(c)(1)(A) charge premised on his single use of a firearm, Mr. Rentz could face a second mandatory sentence of 25 years to life—time he must serve in addition to, not instead of, the years he must serve for his initial § 924(c)(1)(A) conviction. See id. § 924(c)(1)(C)(i)-(ii), (c)(1)(D)(ii). Neither, of course, is that the end of it. Any and all § 924(c)(1)(A) sentences Mr. Rentz receives must themselves be served consecutively to, not concurrently with, any sentences associated with his underlying crimes of violence (assaulting the first victim, murdering the second). See id. § 924(c)(1)(D)(ii).

Cases like Mr. Rentz's are hardly unusual. In an age when the manifest of federal criminal offenses stretches ever longer, a parsimonious pleader can easily describe a defendant's single use of a firearm as happening “during and in relation to” multiple qualifying crimes. Like when a defendant shoots a potential witness against him—committing at once the separate crimes of murder and the killing of a witness. Wilson, 160 F.3d at 736. Or when a defendant brandishes a weapon to induce his victim to surrender a car and come with him—committing in the process the crimes of car-jacking and kidnapping. Phipps, 319 F.3d at 180–81. Or when a defendant points a gun at his victim and demands that she call relatives for cash—giving rise to both an unlawful ransom demand and attempted extortion. Cureton, 739 F.3d at 1035–37. In all these circumstances and many more besides, deciding what is required to prove each § 924(c)(1)(A) charge matters greatly, determining whether the defendant will face five or ten years in prison or more like thirty years to life (all, again, on top of the time he must serve for the underlying predicate offenses).

This court has not yet clearly decided whether a separate use, carry, or possession is necessary to support each count of conviction. To be sure, panels have touched on tangential matters. In Blockburger v. United States, the Supreme Court held that the double jeopardy clause prohibits punishing a defendant for the same conduct under “two distinct statutory provisions ” unless “each provision requires proof of a fact which the other does not.” 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (emphasis added). Analogizing to Blockburger, some defendants have sought to suggest that a double jeopardy problem also arises when the government seeks to punish them multiple times under a single statutory provision like § 924(c)(1)(A) for a single use of a gun resulting in two predicate crimes. Panels of this court have rejected appeals along these lines, reasoning that the defendants at hand were charged with two different predicate offenses and that each charged predicate offense required proof of a fact that the other did not. But whether and how multiple punishments under a single statutory provision like § 924(c)(1)(A) could ever pose a Blockburger double jeopardy problem are questions that simply aren't presented in this appeal. See Sanabria v. United States, 437 U.S. 54, 70, 98 S.Ct. 2170, 57 L.Ed.2d 43 n.24 (1978) ( “Because only a single violation of a single statute is at issue here, we do not analyze this case under the [Blockburger ] same-evidence test”).³

Instead, the question presented by this appeal is whether, as a matter of statutory interpretation, § 924(c)(1)(A) authorizes multiple charges when everyone admits there's only a single use, carry, or possession. Ours is a unit of prosecution case, an inquiry into the “minimum amount of activity for which criminal liability attaches” for each charge under a single criminal statute. Cureton, 739 F.3d at 1041 (internal quotation marks omitted); see also Callanan v. United States, 364 U.S. 587, 597, 81 S.Ct. 321, 5 L.Ed.2d 312 (1961) (unit of prosecution questions concern “whether conduct constitutes one or several violations of a single statutory provision”). And, as other circuits have recognized, “[t]he absence of a [Blockburger ] Double Jeopardy problem does not end [this] inquiry.” Cureton, 739 F.3d at 1040 ; see also Phipps, 319 F.3d at 184, 188 n. 10 (Fifth Circuit noting that neither its previous double jeopardy cases nor ours “address[es] the precise statutory question whether § 924(c)(1) authorizes multiple convictions for a single use of a single firearm based on multiple predicate offenses”).⁴

When seeking a statute's unit of prosecution—when asking what the minimum amount of activity a defendant must undertake, what he must do, to commit each new and independent violation of a criminal statute—the feature that naturally draws our immediate attention is the statute's verb. This comes as no surprise, of course, as the verb supplies the action or doing part of most any sentence, statutory or otherwise. See United States v. Rodriguez–Moreno, 526 U.S. 275, 279–80, 119 S.Ct. 1239, 143 L.Ed.2d 388 (1999) (in deciding what the statute defines as an offense, the “ ‘verb test’ certainly has value as an interpretive tool”); The Chicago Manual of Style § 5.97 (15th ed.2003). True, in the business of statutory interpretation we do not always bow to linguistic rules. A court's job, after all, is to discern the statute's meaning not grade its grammar, and sometimes a law's meaning can be clear even when the grammar's downright awful. But until a clue emerges suggesting otherwise, it's not unreasonable to think that Congress used the English language according to its conventions. And in § 924(c)(1)(A) we find three relevant verbs: uses, carries, and possesses. This alone supplies some evidence that each § 924(c)(1)(A) charge must involve an independent act of using, carrying, or possessing. After all, if a law's verb says it's a crime to kill someone, we usually think a defendant must kill more than one person to be found guilty of more than one offense. That's the action necessary to support each and every unit of prosecution. Section 924(c)(1)(A)'s verbs make it a crime to use, carry, or possess a firearm in certain circumstances. So reading § 924(c)(1)(A) like our homicide statute and in accord with the normal rules of statutory (and sentence) construction goes some way to suggest that every new conviction requires a new act falling into one of those three categories.

Another linguistic clue points in the same direction. Section 924(c)(1)(A) doesn't prohibit using or carrying or possessing a gun in isolation. Nor could it for guns often may be lawfully used, carried, or...