U.S. v. Couch, 01-1826.

• Decision Date: 20 May 2002
• Docket Number: No. 01-1826.,01-1826.
• Citation: 291 F.3d 251
• Parties: UNITED STATES of America, v. Bryan COUCH, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

291 F.3d 251

UNITED STATES of America, v. Bryan COUCH, Appellant.

No. 01-1826.

United States Court of Appeals, Third Circuit.

Argued: January 18, 2002.

Filed: May 20, 2002.

Michael L. Levy, Robert A. Zauzmer, Robert Goldman (argued), Office of United States Attorney, Philadelphia, PA, for appellee.

David L. McColgin (argued), Maureen Kearney Rowley, Defender Association of Philadelphia, Federal Court Division, Philadelphia, PA, for appellant.

Before: SCIRICA, ROSENN, Circuit Judges, and KANE,^* District Judge.

OPINION OF THE COURT

KANE, District Judge.

Bryan Couch appeals from the District Court's imposition of enhanced sentences under 18 U.S.C. § 924(c)(1)(C). Couch pled guilty to three charges of interference with commerce by robbery in violation of 18 U.S.C. § 1951 (the Hobbs Act) and to three counts of discharging a firearm during a crime of violence in violation of § 924(c)(1). The District Court sentenced Couch to sixty-three months on the robbery counts, to ten years on one firearm conviction and to twenty-five years on each of the others, to be served consecutively.

Couch raises one issue on appeal. He argues that because he entered one guilty plea to six counts of the indictment at the same time, no one conviction is a "second or subsequent" conviction subject to the enhanced sentencing provision of 18 U.S.C. § 924(c)(1)(C). Thus, Couch argues, the District Court erred in imposing enhanced sentences of twenty-five years each for two of the three firearms convictions.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Couch's challenge is reviewed for plain error because he failed to raise this objection below. See Fed.R.Crim.P. 52(b); United States v. Knight, 266 F.3d 203, 206 (3d Cir.2001) ("[W]here a defendant has failed to object to a purported error before the sentencing court, our review on appeal is only to ensure that plain error was not committed."). We will affirm.

I. Facts

Couch admitted to the armed robbery of three different supermarkets in the Eastern District of Pennsylvania on December 20, 1999, April 13, 2000 and June 9, 2000. During the first two robberies, Couch fired his shotgun inside the stores but no one was injured. During his getaway from the third robbery Couch fired his shotgun at a police officer, striking him in the forehead and leg.

On December 4, 2000, Couch pled guilty to three charges of interference with commerce by robbery in violation of the Hobbs Act and to three counts of discharging a firearm during a crime of violence pursuant to § 924(c)(1). The manner in which the District Court invited and accepted his plea form the basis for Couch's argument here. During the colloquy, the District Court asked Couch how he pled "to criminal indictment number 00-459-1, consisting of six counts charging [him] with interference with commerce by robbery, [and] use, carrying, and discharge of a gun during a crime of violence." Couch responded, "[g]uilty," and the District Court concluded by saying, "the Court accepts the plea."

The court below sentenced Couch to sixty-three months on the Hobbs Act counts, to ten years for one of the firearm counts pursuant to § 924(c)(1)(A)(iii) and to twenty-five years for each of the other two firearm counts pursuant to § 924(c)(1)(C). These sentences were imposed consecutively. In total, the District Court sentenced Couch to 783 months in prison, five years of supervised release, a $600 mandatory special assessment, and restitution of $39,508.94.

II. Discussion

The parties agree that 18 U.S.C. § 924(c)(1) governs Couch's sentence for the three counts of discharging a firearm during a crime of violence. That statute reads, in pertinent part:

(A) [A]ny person who, during and in relation to any crime of violence ... 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 ...

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

. . .

(C) In the case of a second or subsequent conviction under this subsection, the person shall —

(i) be sentenced to a term of imprisonment of not less than 25 years ...

18 U.S.C. § 924(c)(1) (2000).

The Supreme Court applied the enhanced sentencing provision set forth in § 924(c)(1)(C) in Deal v. United States, 508 U.S. 129, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). As in this case, Deal was charged in one multi-count indictment for unrelated offenses occurring on different dates. Deal was convicted by a jury of six armed robberies he committed over a four month period in 1990. Deal, 508 U.S. at 130, 113 S.Ct. 1993. Among the charges of which Deal was convicted were six counts of carrying and using a firearm during the robberies in violation of § 924(c)(1). Id. At sentencing, Deal received the standard penalty for one count pursuant to § 924(c)(1)(A)(iii) and the enhanced penalty set forth in § 924(c)(1)(C)(i) for each of the other five. Id.

On appeal, Deal argued that the statute is ambiguous because the word "conviction" in § 924(c)(1)(C) could refer to either the verdict of guilt or the entry of final judgment of conviction. Deal asked the Court to construe the word "conviction" in § 924(c)(1)(C) leniently so as to mean the entry of final judgment, which includes both the adjudication of guilt and sentence. Because only one entry of final judgment, albeit with multiple counts, had been entered in his case, Deal reasoned that there was no "second or subsequent" conviction meriting the enhanced sentence.

The United States Supreme Court rejected Deal's argument and the support for it articulated in the dissent. The dissent in Deal opined that Congress intended § 924(c)(1) to punish recidivists, not first-time offenders with multiple counts. The dissent found "no ambiguity in the phrase `subsequent conviction' as used in § 924(c)," and would have held that the phrase "second or subsequent conviction" referred to a conviction for an offense committed after a prior conviction under the statute had become final. Deal, 508 U.S. at 141, 113 S.Ct. 1993 (Stevens, J., dissenting).

The majority soundly rejected this argument, holding that the word "conviction" in § 924(c)(1)(C), the second or subsequent of which merits an enhanced sentence, refers to the finding of guilt by a judge or jury. Deal, 508 U.S. at 132, 113 S.Ct. 1993. Because the jury found Deal guilty of each § 924(c)(1) count, presumably one at a time, every count after the first was subject to the enhanced penalty because it was a second or subsequent finding of guilt. Id.

Our analysis begins, as it must, with the Supreme Court's definition of the word "conviction" as a finding of guilt. Unlike Deal, before us is a plea of guilt rather than a finding of guilt by a jury or judge. This difference need not detain us long. Inasmuch as a plea of guilt is the moment when the defendant declares himself guilty, for our purposes here, it is equivalent to the same declaration made by a judge or jury.

Couch does not dispute that under Deal he incurred three § 924(c)(1) convictions at the moment he entered a guilty plea. However, because the District Court did not take the plea for each count separately, Couch argues that there is no "second or subsequent conviction." Instead, the District Court referred to the indictment number, described its contents as, "six counts charging [him] with ... use, carrying, and discharge of a gun during a crime of violence," and asked Couch how he pled. Couch said "guilty" once in response, and the District Court accepted his plea. As a result, Couch argues, none of his convictions qualifies to enhance his sentence under § 924(c)(1) because none followed any of the others in time, order or succession. Should he prevail with this argument, Couch should receive only the ten year penalty of § 924(c)(1)(A)(iii) for each of the three counts, shaving 30 years from his sentence.

This case falls within the very crevasse that the majority in Deal was convinced its holding had sealed. The Supreme Court presented the issue thusly:

[Deal] also argues that the terms "second" and "subsequent" admit of at least two meanings — next in time and next in order or succession. That ambiguity is worth pursuing if "conviction" means "judgment," since a judgment entered once-in-time can (as here) include multiple counts. The point becomes irrelevant, however, when "conviction" means (as we hold) a finding of guilt.

Deal, 508 U.S. at 133 n. 1, 113 S.Ct. 1993. By way of support the Supreme Court asserted, without explanation, that "findings of guilt on several counts are necessarily arrived at successively in time." Id. (emphasis supplied).

The Government reads this language as controlling, and urges us to hold that Couch's pleas were "subsequent" and "successive" based on the language of Deal alone. That position rests on the Government's contention that the Supreme Court's statement that "findings of guilt on several counts are necessarily arrived at successively in time" is a statement of law whereby simultaneous admissions of guilt are to be considered automatically to be "second or subsequent." Couch reads the very same language of Deal to require convictions that follow one another in time, order or succession. We read the language to mean that, as a matter of course, Courts always enter findings of guilt on multiple counts successively. The rest of the footnote makes clear this "fact" was the grounds for the Supreme Court's belief that it would not have to address the meaning of "second or subsequent." The statement is also dicta, leaving for this Court a question that the Supreme Court did not reach in Deal — the definition of "second or subsequent" under § 924(c)(1)(C). We take our guidance not from footnote number one of Deal, but from the statute itself.

Section § 924(c)(1)(C) imposes the enhanced sentence "[i]n the case of a second or subsequent conviction under ...