U.S. v. Arreola

• Decision Date: 26 April 2006
• Docket Number: No. 04-10504.,04-10504.
• Citation: 467 F.3d 1153
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose ARREOLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

467 F.3d 1153

UNITED STATES of America, Plaintiff-Appellee, v. Jose ARREOLA, Defendant-Appellant.

No. 04-10504.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 16, 2006.

Filed April 26, 2006.

Amended November 8, 2006.

Marc J. Zilversmit, San Francisco, CA, for appellant Arreola.

Robert David Rees, Deborah R. Douglas, Assistant United States Attorney, San Francisco, CA, for appellee United States.

Appeal from the United States District Court for the Northern District of California; D. Lowell Jensen, District Judge, Presiding. D.C. No. CR-01-40120-DLJ.

Before: WALLACE, HAWKINS, and THOMAS, Circuit Judges.

ORDER

The panel has decided to amend the opinion filed April 26, 2006. A substituted amended opinion is filed concurrently with this order.

With the filing of the amended opinion, the panel has voted to deny the petition for rehearing. Judge Thomas has voted to deny the petition for rehearing en banc, and Judge Wallace and Judge Hawkins so recommend.

The full court has been advised of the petition for rehearing en banc, and no active judge has requested a vote whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing is DENIED, and the petition for rehearing en banc is DENIED. No further petitions for rehearing or rehearing en banc will be allowed.

OPINION

THOMAS, Circuit Judge:

In this appeal, we consider whether in using the phrases "possesses" and "uses or carries," 18 U.S.C. § 924(c)(1)(A) defines two offenses or two means of committing a single offense. We conclude that the statute defines one offense, and affirm the judgment of the district court.

I

Jose Arreola appeals his conviction for the use of a firearm during the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The circumstances that led to his conviction began in April 2001, when Arreola met Roberto Martinez, an undercover police officer, in a Taco Bell parking lot in Oakland. Arreola invited Martinez into his gold Ford Expedition. When Martinez got into the car, Arreola was seated in the second of three rows of seats. Two of Arreola's associates were seated in the front seats, and a confidential informant was seated with Arreola. Arreola offered to sell Martinez seventy ounces of heroin. Martinez asked Arreola to wait while he got the money to pay for the heroin. Martinez exited the Expedition, supposedly to obtain the necessary cash, and gave an arrest signal to officers waiting nearby. Arreola and his two associates were arrested.

After the arrests, officers searched the Expedition and found a loaded .45 caliber "Combat Elite" semiautomatic handgun in the glove compartment. The handgun was positioned such that "someone sitting in the front passenger's seat would ... have easy access to" the gun. However, it would have been more difficult to access the gun from the middle row of seats when there were people sitting in the front seats.

When officers searched Arreola upon his arrest, they found an extra magazine clip in his pocket. In a statement to the officers, Arreola explained, "I bought the Colt Commander .45 semi-automatic gun from the street for two-hundred dollars. I usually carry the gun for protection since I have a lot of encounters with gang members."

On July 19, 2001, in Count Three of a six-count Indictment, the government charged that:

On or about April 27, 2001, in the Northern District of California, the defendant

JOSE ARREOLA,

did knowingly and intentionally possess a firearm during and in relation to the drug trafficking crimes set forth in Counts One and Two of this Indictment

....

The government filed a Superceding Indictment on December 6, 2001. The Superceding Indictment amended Count Three to read:

On or about April 27, 2001, in the Northern District of California, the defendant

JOSE ARREOLA

did knowingly and intentionally use and carry the firearm discussed below during and in relation to, and possessed the same firearm in furtherance of the drug trafficking crimes set forth in Counts One and Two of this Indictment....

When the district court asked the prosecutor to state the difference between the two indictments, the prosecutor responded that "the government has simply added the— language or the theory of carrying the firearm in addition to possessing the firearm."

In its closing argument, the government argued repeatedly that the jury could convict Arreola if it found "beyond a reasonable doubt that the defendant committed one or both of the following: number one, that he carried the .45 caliber semiautomatic handgun during and in relation to a drug-trafficking crime; or two, defendant possessed the same firearm in furtherance of a drug-trafficking crime." Similarly, defense counsel argued that the jury could not convict unless it found that "the defendant knowingly carried or possessed a .45 caliber semiautomatic handgun" and that "the defendant carried the firearm during and in relation to or possessed the firearm in furtherance of the drug-trafficking crime as charged in Count 1 of the indictment."

After the parties finished their respective closing arguments, the judge instructed the jury. Prior to trial, the government had proposed to instruct the jury that it could convict on the § 924(c) count only if it found that Arreola knowingly committed the underlying drug crime and that he "knowingly carried a .45 caliber semi-automatic handgun, Combat Elite Brand, during and relation to, or possessed the same firearm in furtherance of, the drug-trafficking crime set forth in Count Two of the Superceding Indictment." The government's instruction was based on the fact that "[t]he government is proceeding on two different theories.... One is that [Arreola] carried the handgun during and in relation to a drug trafficking crime. That's one theory. And the other one is that he knowingly possessed the same firearm in furtherance of a drug-trafficking crime." After some discussion about the possible overlap between "use and carry" and "possess," the court and the parties agreed not to treat them as "though they're two separate counts under 924(c)."

Ultimately, the judge instructed the jury that it could convict Arreola if it found that he committed the underlying drug offense, he "knowingly carried or possessed a .45 caliber semi-automatic handgun," and he "carried the firearm during and in relation to, or possessed the firearm in furtherance of the drug-trafficking crime as charged in Count One of the Indictment." In its closing instructions, the court gave the jury a general unanimity instruction: "The law requires that any verdict you return must be unanimous." The court's instructions— a copy of which was in the jury room— differed slightly from the verdict form, which stated, "We, the jury, find the defendant [guilty/not guilty] of possessing or carrying a firearm in relation to, or in furtherance of, a drug trafficking crime as charged in Count Two of the Indictment."

The jury convicted Arreola, and he was sentenced to 190 months in prison. This timely appeal followed.

II

The central question in this appeal is whether 18 U.S.C. § 924(c)(1)(A) defines one offense or two. Section 924(c) provides that "any person who, during and in relation to any ... drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm" shall be subject to certain minimum sentences. 18 U.S.C. § 924(c)(1)(A).

In analyzing this question, we are assisted by the Supreme Court's guidance in Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), which "laid down a presumption against construing statutes so as to lead to multiple punishment." United States v. UCO Oil Co., 546 F.2d 833, 837 (9th Cir.1976). In Bell, the Court explained that

[w]hen Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.... It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment.

349 U.S. at 83, 75 S.Ct. 620. The fact that "a statute encompasses various modes of violation requiring different elements of proof ... does not compel" the conclusion that the statute creates separate offenses. UCO Oil, 546 F.2d at 838.

In determining whether the statute at issue creates separate offenses, or simply describes alternative means to commit the same crime, we employ the analytical framework established in UCO Oil. Under UCO Oil, we consider "several relevant factors," including: (1) "language of the statute itself," (2) "the legislative history and statutory context," (3) the type of conduct proscribed, and (4) the "appropriateness of multiple punishment for the conduct charged in the indictment." Id. at 836-838. Applying those factors to this case, it is clear that § 924(c) creates only one offense.

A

Under UCO Oil, we first examine the language of the statute itself. The critical language of § 924(c) applies to any person who "uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A). The statute does not simply list the prohibited activities—using, carrying, or possessing a firearm. Rather, it separates the "uses or carries" provision from the "possesses" provision, placing each in its own clause, separated by a disjunctive, "or." As a matter of grammatical construction, the use of the disjunctive indicates that Congress was addressing two separate acts. United States v. Combs, 369 F.3d 925, 931 (6th Cir.2004) ("The two prongs of the statute are separated by the disjunctive 'or,' which, according to the precepts of statutory construction, suggests the separate prongs must have different meanings."); see also United States v. Pleasant, 125 F.Supp.2d 173 (E.D.Va.2000), aff'd 48 Fed.Appx. 909 (4th Cir.2002) ("The use of a second relative pronoun, the presence of...