U.S. v. Castillo, 97-50708
| Decision Date | 28 July 2000 |
| Docket Number | No. 97-50708,97-50708 |
| Parties | (5th Cir. 2000) UNITED STATES, Plaintiff-Appellee, v. JAIME CASTILLO; BRAD EUGENE BRANCH; RENOS LENNY AVRAAM; GRAEME LEONARD CRADDOCK; KEVIN A. WHITECLIFF, Defendants-Appellants |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeals from the United States District Court For the Western District of Texas
ON REMAND FROM THE UNITED STATES SUPREME REMAND FROM THE UNITED STATES SUPREME COURT
Before EMILIO M. GARZA, DeMOSS, and PARKER, Circuit Judges.
On remand from the Supreme Court, we REMAND this case to the district court for further proceedings consistent with the Court's opinion in Castillo v. United States, 530 U.S. __, 120 S. Ct. 2090, 147, L.Ed.2d 94 (2000).
The premise upon which the government framed count 3 of the indictment in this case was that the type of firearm used in a § 924(c)(1) charge was a sentencing factor and not an element of the offense. The premise upon which the district judge tried this case and submitted it to the jury was also that the type of firearm used in a § 924(c)(1) count was a sentencing factor to be determined by the trial judge (not the jury) on the basis of a preponderance of the evidence (and not beyond a reasonable doubt). The premise upon which the prior panel of this Court affirmed the convictions and sentence (subject to a redetermination that the "use" involved satisfied the "active employment" test of Bailey v. United States, 116 S. Ct. 501 (1996)) was also that the type of firearm involved was a sentencing factor and not an element of the offense. The premise upon which this panel applied the law of the case doctrine to affirm the prior decision by the first panel was that no decision of a higher authority had occurred which would change the decision of the prior panel, and accordingly, we declined to reconsider the premise that the type of firearm used or carried is a sentencing enhancement and not an element of the offense.
On direct appeal from the decision of this panel the Supreme Court held:
For the reasons stated, we believe that Congress intended the firearm type-related words it used in § 924(c)(1) to refer to an element of a separate, aggravated crime. Accordingly, we reverse the contrary determination of the Court of Appeals and remand the case for proceedings consistent with this opinion.
Castillo v. United States, ___ U.S. ___, 120 S. Ct. 2090, 2096, 147 L.E.2d 94 (2000).
So the Supreme Court holding produced a change of "tectonic plate shift proportions" in the premises upon which this case had been handled previously, and the law of the case doctrine no longer precludes us from addressing and applying this new premise. I am disappointed that my colleagues declined to do that. At the very minimum, the appellants are entitled to a decision by this Court that vacates the sentences assessed against them because the use of "machine guns" was not specifically pled in count 3, and the jury, therefore, could not possibly have determined that this element of the offense had been proven beyond a reasonable doubt. Additionally, I think that this Court should address the validity of appellants' present convictions under count 3 for violation of § 924(c)(1). For the same reasons that the sentences cannot be supported, the text of count 3 of the indictment as it now exists cannot support a conviction for use and carrying of a machine gun. If the government wants to get a conviction for use and carrying of a machine gun it must re-indict appellants and specifically allege the aggravating element resulting from the...
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