U.S. v. Anderson

• Citation: 313 U.S. App. D.C. 335,59 F.3d 1323
• Decision Date: 18 July 1995
• Docket Number: No. 90-3041,90-3041
• Parties: UNITED STATES of America, Appellee, v. Marcos L. ANDERSON, a/k/a Marcos Loinas Anderson, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1323

59 F.3d 1323

313 U.S.App.D.C. 335

UNITED STATES of America, Appellee, v. Marcos L. ANDERSON, a/k/a Marcos Loinas Anderson, Appellant.

No. 90-3041.

United States Court of Appeals, District of Columbia Circuit.

Argued En Banc April 12, 1995.

Decided July 18, 1995.

Appeal from the United States District Court for the District of Columbia (89cr0160-01).

Dennis M. Hart, appointed by the court, Washington, DC, argued the cause and filed the briefs for appellant.

Neil H. Jaffee, Asst. Federal Public Defender, Washington, DC, argued the cause for amicus curiae. With him on the briefs was A.J. Kramer, Federal Public Defender, Washington, DC.

Thomas J. Tourish, Jr., Asst. U.S. Atty., Washington, DC, argued the cause for appellee. With him on the brief were Eric H. Holder, Jr., U.S. Atty., and John R. Fisher, Asst. U.S. Atty., Washington, DC.

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

Opinion for the Court filed by Circuit Judge SILBERMAN, in which HARRY T. EDWARDS, Chief Judge, and WALD, BUCKLEY, RANDOLPH, and TATEL, Circuit Judges, concur.

Concurring opinion filed by Circuit Judge BUCKLEY.

Concurring opinion filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge GINSBURG, in which STEPHEN F.

WILLIAMS, SENTELLE, KAREN LeCRAFT HENDERSON, and ROGERS, Circuit Judges, join.

SILBERMAN, Circuit Judge:

Marcos Anderson appealed inter alia from four convictions under 18 U.S.C. Sec. 924(c)(1) (1988 & West Supp.1995) for using or carrying a firearm "during and in relation to" a drug trafficking crime. A panel of our circuit rejected appellant's challenge to the multiple Sec. 924(c)(1) convictions. See United States v. Anderson, 39 F.3d 331, 357, 359 (D.C.Cir.1994) (Panel Decision), vacated and reh'g en banc granted (D.C.Cir. Feb. 9, 1995). Upon rehearing en banc, we reverse three of appellant's Sec. 924(c)(1) convictions.

I.

Appellant was convicted of conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846 (1988) (the conspiracy lasting more than six months); using a telephone to facilitate a drug transaction in violation of 21 U.S.C. Sec. 843(b) (1988); possession with intent to distribute cocaine and distribution of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1988); traveling interstate in aid of racketeering activities in violation of 18 U.S.C. Sec. 1952(a) (1988); engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. Sec. 848 (1988); and four violations of 18 U.S.C. Sec. 924(c)(1) for carrying and using a firearm in relation to a drug trafficking offense.

Each of Anderson's four Sec. 924(c)(1) convictions was tied to the same predicate offense, the narcotics conspiracy. Anderson's first Sec. 924(c)(1) charge and conviction was centered on a 9mm pistol; FBI agents seized the gun in February 1989 from two juveniles en route to Los Angeles, where (at Anderson's direction) they were planning to rob a drug source. The second Sec. 924(c)(1) conviction involved two guns connected to another abortive robbery attempt in March 1989, in which Anderson again sent a coconspirator to Los Angeles to rob a supplier (the guns were seized from the coconspirator). The third and fourth charges and convictions resulted from guns seized simultaneously at the time of Anderson's arrest on May 16, 1989. The third focused on a Browning .380 semiautomatic pistol seized, along with crack cocaine, cocaine powder, drug paraphernalia, and $1,000 in $1 bills, at the time of Anderson's arrest at his distribution center in Park Towers. The fourth Sec. 924(c)(1) conviction was based on a 9mm semiautomatic pistol that was seized along with ammunition drug paraphernalia, and documents linking Anderson to the location, at the Woodner distribution center on the same day Anderson was arrested at the Park Towers. The later two charges and convictions thus involved simultaneous possession of weapons at two different locations.

Anderson argued on appeal that multiple Sec. 924(c)(1) convictions could not be linked to only one underlying predicate offense. The government claimed that Anderson waived this argument below by failing to object to the indictment before trial or to his convictions and sentences on multiplicity grounds. The government argued that "[a] finding that appellant Anderson has waived his multiplicity objection is particularly appropriate since a timely objection before trial would have allowed the government to obtain a superseding indictment which linked at least two of the 924(c)(1) charges to separate predicate drug trafficking offenses." The panel denied the appeal with regard to the multiple Sec. 924(c)(1) convictions and sentences. See Panel Decision, 39 F.3d at 357. Rehearing en banc was granted on the limited issue of appellant's multiple convictions for violations of Sec. 924(c)(1).

II.

Appellant, supported by the court-appointed amicus, contends that he may only be convicted of one violation of Sec. 924(c)(1) for using or carrying a firearm during and in relation to any crime of violence or drug trafficking crime because, although the government charged Anderson with several separate predicate offenses, all four Sec. 924(c)(1) charges were linked only to the conspiracy charge. In the paradigm case of a short duration drug distribution crime or crime of violence, it appears that the government rarely if ever asserts that a defendant carried or used a single gun more than once in relation to a single underlying offense--even if it could be argued that the "carries" or "uses" of the gun were separated in time and place. But cf. United States v. Taylor, 13 F.3d 986, 988-89 (6th Cir.1994) (two guns brought to one drug sale; one count of possession with intent to distribute, two Sec. 924(c)(1) counts). The dispute over the meaning of Sec. 924(c)(1) more typically arises in cases where the government charges a drug trafficking conspiracy, as in this case, or possession with intent to distribute--both lasting over a period of time. These sorts of cases often involve multiple guns. The government's legal position is based on its premise that Sec. 924(c)(1) is a separate crime, not just a penalty enhancement, and therefore it claims the conclusion follows that an unlimited number of Sec. 924(c)(1) violations can be tied to any one drug trafficking crime or crime of violence. The perception of congressional purpose animating the government's statutory construction is boldly presented in its brief: "[t]he underlying crime, per se, was not the focus of Congress' concern but rather was used merely as the vehicle, or 'hook,' upon which Congress federalized the prohibition against the use and carrying of firearms."

Amicus quarrels with the government's premise and joins appellant in challenging the government's conclusion. Amicus asserts that Sec. 924(c)(1) is a sentence enhancement statute: therefore, the government is obliged not only to tie each alleged Sec. 924(c)(1) violation to a separate predicate crime, but must also convict the defendant of the predicate crime before Sec. 924(c)(1) would be chargeable.

Section Sec. 924(c)(1) states in relevant 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 provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to life imprisonment without release....

18 U.S.C. Sec. 924(c)(1) (1988 & West Supp.1995) (emphases added). ¹

Amicus, relying heavily on Judge Moore's dissent in United States v. Hill, 971 F.2d 1461, 1470 (10th Cir.1992) (en banc), presents a respectable argument for its position that Sec. 924(c)(1) is only a penalty enhancement. We think, however, that the majority in Hill had the better of the case. The majority acknowledged that "[a]t first glance, Sec. 924(c)(1) appears to be a penalty enhancement statute," id. at 1463, and that various courts have so characterized it. It noted, however, that the Supreme Court had described Sec. 924(c) as creating "an offense distinct from the underlying felony" in Simpson v. United States, 435 U.S. 6, 10, 98 S.Ct. 909, 912, 55 L.Ed.2d 70 (1978), and that the structure of Sec. 924(c) appears to make out a separate crime. See Hill, 971 F.2d at 1464. We, therefore, hold to our previous view that a Sec. 924(c)(1) conviction stands on its own even if the defendant is acquitted of the underlying offense or the underlying offense is not charged, so long as the government presents sufficient evidence to prove the predicate offense as an element of the Sec. 924(c)(1) violation. See United States v. Laing, 889 F.2d 281, 288-89 (D.C.Cir.1989), cert. denied, 494 U.S. 1069, 110 S.Ct. 1790, 108 L.Ed.2d 792 (1990). Nevertheless, we appreciate that in Simpson both the majority and Justice Rehnquist in dissent seemed to refer to Sec. 924(c) as a penalty enhancement statute; in Deal v. United States, --- U.S. ----, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993), Justice Scalia, writing for the Court, did so again, at least indirectly. See Dea...