U.S. v. Abreu

• Decision Date: 13 April 1992
• Docket Number: 89-5166 and 89-5173,Nos. 89-4145,s. 89-4145
• Citation: 962 F.2d 1447
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Orestes Luciano ABREU, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James David THORNBRUGH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1447

962 F.2d 1447

60 USLW 2690

UNITED STATES of America, Plaintiff-Appellee, v. Orestes Luciano ABREU, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. James David THORNBRUGH, Defendant-Appellant.

Nos. 89-4145, 89-5166 and 89-5173.

United States Court of Appeals Tenth Circuit.

April 13, 1992.

David K. Smith, Midvale, Utah, filed a brief, for defendant-appellant abreu.

Paul M. Warner, Acting U.S. Atty., and Wayne T. Dance, Asst. U.S. Atty., Salt Lake City, Utah, and Robert J. Erickson, Atty., Dept. of Justice, Washington, D.C., filed a brief, for plaintiff-appellee in No. 89-4145.

Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colo., for defendant-appellant Thornbrugh.

Robert J. Erickson, Atty., Dept. of Justice, Washington, D.C. (Tony M. Graham, U.S. Atty., Tulsa, Okl., with him, on the brief), for plaintiff-appellee, in Nos. 89-5166 and 89-5173.

Before McKAY, Chief Judge, HOLLOWAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, and EBEL, Circuit Judges.

OPINION ON REHEARING EN BANC

SEYMOUR, Circuit Judge.

The court, on its own motion, ordered rehearing en banc in these two appeals to consider the interpretation of the enhancement provision in 18 U.S.C. § 924(c)(1) (1988). The remaining issues raised on appeal are decided separately in two panel opinions filed simultaneously with this opinion. See United States v. Abreu, 962 F.2d 1425 (10th Cir.1992); United States v. Thornbrugh, 962 F.2d 1438 (10th Cir.1992).

I.

Orestes Abreu was charged in a second superseding indictment with one count of conspiring to possess cocaine with intent to distribute, one substantive count of possessing cocaine with intent to distribute, and four counts of using a firearm during and in relation to a drug offense in violation of 18 U.S.C. § 924(c)(1). ¹ Two of the section 924 charges pertained to the conspiracy count; one of those charges alleged the use of a rifle, and one alleged the use of a revolver. The remaining two section 924 charges pertained to the count charging the substantive drug offense, which was also alleged to be an overt act in furtherance of the conspiracy. One of these section 924 charges alleged the use of the rifle during the substantive offense, and the other alleged use of the revolver. Abreu was convicted on all counts. In addition to the sentences imposed on the conspiracy and drug charges, the trial court sentenced Abreu on two of the section 924 charges. The court imposed a 60-month sentence on the count charging the use of a revolver during the substantive drug offense, and an enhanced sentence of 120 months on the charge alleging use of a rifle during the conspiracy offense, the sentences to run consecutively to the drug charges and to each other.

James Thornbrugh was charged in a six-count indictment with three counts of bank robbery, occurring on three different dates, and three section 924 counts, one pertaining to each of the alleged bank robbery offenses. He was found guilty on all six counts. In addition to giving Thornbrugh concurrent sentences on the robbery offenses, the court imposed a 60-month sentence on one section 924 count, and enhanced 240-month sentences on each of the other two, these sentences to run concurrently to the robbery sentences and consecutively to each other.

Abreu and Thornbrugh both raise the propriety of their enhanced sentences under section 924. That section currently provides in pertinent part:

"Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment 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...."

18 U.S.C. § 924(c)(1) (emphasis added). ² Defendants challenge the applicability of the sentence enhancement provision for a "second or subsequent conviction." The government urges this court to hold that the phrase "second or subsequent conviction" includes one of two separate offenses charged in the same indictment. For purposes of our en banc consideration, we asked the parties to address whether under 18 U.S.C. § 924(c) an enhanced sentence for a "second or subsequent conviction" may be imposed:

(1) when a defendant is convicted of two or more separate offenses charged in the same indictment regardless of when the offenses occurred; or

(2) only when a defendant is convicted of an offense that was committed in a subsequent transaction distinct from the conduct constituting the first section 924(c) offense, without regard to when the first conviction occurred; or

(3) only when a defendant is convicted of an offense that was committed subsequent to an earlier conviction under section 924(c).

II.

In order to ascertain the meaning of section 924(c), we begin with the text of the statute itself. "A fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199 (1979). "Second" is defined as "next to the first in place or time." Webster's Third New International Dictionary, 2050 (1981). "Subsequent" is defined as "following in time" or "following in order of place." Id. at 2278. Black's Law Dictionary, 1351 (6th Deluxe Ed.1990), defines "second" as "sequence in point or time." "Subsequent" is defined as "[f]ollowing time; coming or being later than something else; succeeding." Id. at 1427. Thus, while the words "second" and "subsequent" can be arguably read to refer to multiple events occurring at the same point in time, both words can equally plausibly be read as referring to two or more than two events that occur sequentially in time.

The textual ambiguity arising from the use of the words "second or subsequent" is heightened by the fact that these words modify "conviction," a term not defined in the statute itself and which one court has described as "a chameleon." Harmon v. Teamsters Local Union 371, 832 F.2d 976, 978 (7th Cir.1987). The Supreme Court has noted that "the terms 'convicted' or 'conviction' do not have the same meaning in every federal statute," Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n. 6, 103 S.Ct. 986 n. 6, 74 L.Ed.2d 845 (1983), rather, the terms "vary from statute to statute," id. at 113 n. 7, 103 S.Ct. at 992 n. 7. ³ Indeed, this court has held that a conviction occurs upon entry of a guilty plea for purposes of 28 C.F.R. § 2.52(c)(2), which requires the Parole Commission to order forfeiture of street time if a parolee is "convicted" of a new offense punishable by imprisonment. See DeCuir v. United States Parole Comm'n, 800 F.2d 1021, 1023 (10th Cir.1986). There, however, the regulation also stated that "[a]n actual term of confinement or imprisonment need not have been imposed for such conviction." 28 C.F.R. 2.52(c)(2). On the other hand, we have also held that a conviction for purposes of adjudging a defendant as a juvenile delinquent occurs not upon the plea but upon the entry of judgment. See United States v. Steven W., 850 F.2d 648, 649 (10th Cir.1988) (citing Lott v. United States, 367 U.S. 421, 426, 81 S.Ct. 1563, 1566-67, 6 L.Ed.2d 940 (1961) ("the plea itself does not constitute a conviction")), cert. denied, 488 U.S. 1012, 109 S.Ct. 801, 102 L.Ed.2d 791 (1988).

In short, "second or subsequent" can be read to describe either multiple events occurring at one time or multiple events occurring in a chronological sequence. "Conviction" can refer either to the return of a jury verdict of guilt or to the court's entry of judgment on that verdict. Accordingly, the text of the statute does not compel the construction that a second or subsequent conviction occurs when a defendant is charged in one indictment with more than one section 924(c) offense and a single judgment of conviction is entered on that indictment. Given the impossibility of discerning a plain meaning of "second or subsequent conviction" from the language of the statutory phrase, we conclude that the phrase is ambiguous.

When the plain language of the statute does not unambiguously reveal its meaning, we turn to the legislative history. See Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547-48, 79 L.Ed.2d 891 (1984). The legislative history regarding section 924(c) is sparse.

"[Section] 924(c) was offered as an amendment on the House floor by Representative Poff, and passed on the same day. Accordingly, the committee reports and congressional hearings to which we normally turn for aid in these situations simply do not exist, and we are forced in consequence to search for clues to congressional intent in the sparse pages of floor debate that make up the relevant legislative history."

Busic v. United States, 446 U.S. 398, 405, 100 S.Ct. 1747, 1752, 64 L.Ed.2d 381 (1980) (citations omitted).

One of the few relevant statements made with respect to the language in question is the following observation by Representative Poff, one of section 924(c)'s sponsors. He stated that the intended effect of the provision's minimum mandatory penalty was

"to persuade the man who is tempted to commit a Federal felony to leave his gun at home. Any such person should understand that if he uses his gun and is caught and convicted, he is going to jail. He should further understand that if he does so a second time, he is going to jail for a longer time."

114 Cong.Rec. 22231 (daily ed. July 19, 1968) (emphasis added). Representative Rogers echoed Poff's statement: ...