U.S. v. Hill

Decision Date04 August 1992
Docket NumberNo. 91-7009,91-7009
Citation971 F.2d 1461
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Jackie Ray HILL, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Vester Songer, Hugo, Okl., for defendant-appellant.

Richard A. Friedman, Dept. of Justice, Washington D.C. (John Raley, U.S. Atty., and Sheldon J. Sperling, Asst. U.S. Atty., Muskogee, Okl., with him on the brief), for plaintiff-appellee.

Barbara S. Blackman of Cherner & Blackman, Denver, Colo., for amicus curiae Colorado Criminal Defense Bar, Inc.

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

BALDOCK, Circuit Judge.

In United States v. Morehead, 959 F.2d 1489 (10th Cir.1992), a divided panel affirmed Defendant-appellant Jackie Ray Hill's conviction for conspiracy to use or carry a firearm during and in relation to the commission of a drug trafficking offense. See id. at 1499-1504. See also id. at 1513-14 (Moore, J., dissenting). The conspiracy for which Mr. Hill was convicted was charged under 18 U.S.C. § 371, and the unlawful objective was to violate 18 U.S.C. § 924(c)(1). Mr. Hill had also been charged in the same indictment with conspiring to manufacture, possess and distribute marijuana under 21 U.S.C. § 846; five substantive drug offenses relating to a marijuana cultivation operation at a codefendant's residence; one count of simple possession of a different drug; and one substantive § 924(c) violation. The drug trafficking offenses underlying the § 924(c) unlawful objective of the § 371 conspiracy were the § 846 conspiracy and two of the substantive marijuana offenses which were also alleged as the unlawful objectives of the § 846 conspiracy. Mr. Hill was either acquitted or had the counts dismissed on all charges except for the § 371 conspiracy to violate § 924(c). We granted Mr. Hill's suggestion for rehearing en banc to consider the narrow issue of whether a person can be convicted of conspiracy to violate 18 U.S.C. § 924(c).

We begin by considering whether the charge was proper. 1 Section 371 of title 18 provides that "[i]f two or more persons conspire ... to commit any offense against the United States ... and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both." 18 U.S.C. § 371 (emphasis added). The "essence" of a conspiracy "is the agreement or confederation to commit a crime." United States v. Bayer, 331 U.S. 532, 542, 67 S.Ct. 1394, 1399, 91 L.Ed. 1654 (1947). See also United States v. Felix, --- U.S. ----, ----, 112 S.Ct. 1377, 1384, 118 L.Ed.2d 25 (1992); Ianelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975). The law of conspiracy "seeks to protect society from the dangers of concerted criminal activity," which is viewed as "a greater potential threat to the public than individual delicts," by imposing "criminal sanctions for the agreement alone, plus an overt act in pursuit of it, regardless of whether the crime agreed upon is actually committed." United States v. Feola, 420 U.S. 671, 693-94, 95 S.Ct. 1255, 1268, 43 L.Ed.2d 541 (1975); Callanan v. United States, 364 U.S. 587, 593-94, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961). Accordingly, to determine whether § 924(c)(1) may be charged as the unlawful objective of a § 371 conspiracy, we must determine whether 18 U.S.C. § 924(c)(1) is an "offense against the United States."

Section 924(c)(1) provides 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.... 2

18 U.S.C. § 924(c)(1). At first glance, § 924(c)(1) appears to be a penalty enhancement statute. Section 924 is entitled "Penalties," and its remaining subsections set forth penalties for firearms offenses. Section 924(c)(1) provides that its penalty is "in addition to the punishment" provided by the underlying crime, and a conviction under § 924(c)(1) requires proof that the defendant committed the underlying crime of violence or drug trafficking crime. United States v. Munoz-Fabela, 896 F.2d 908, 910 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 76, 112 L.Ed.2d 49 (1990); United States v. Hunter, 887 F.2d 1001, 1003 (9th Cir.1989) (per curiam), cert. denied, 493 U.S. 1090, 110 S.Ct. 1159, 107 L.Ed.2d 1062 (1990). See also H.R.Rep. No. 495, 99th Cong., 2d Sess. 10, reprinted in 1986 U.S.C.C.A.N. 1327, 1335 (construing earlier version of § 924(c) as requiring "proof of the defendant's commission of the [underlying] crime"). Indeed, § 924(c) has been characterized as a "enhancement" statute. See Busic v. United States, 446 U.S. 398, 405, 100 S.Ct. 1747, 1752, 64 L.Ed.2d 381 (1980) (characterizing earlier version of § 924(c) as an "enhancement scheme"); Eckert v. Tansy, 936 F.2d 444, 449 (9th Cir.1991) (citing § 924(c) as example of "weapons enhancement scheme"); United States v. Henning, 906 F.2d 1392, 1399 (10th Cir.1990) ("924(c) is an enhancement statute"), cert. denied, --- U.S. ----, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991); United States v. Sherbondy, 865 F.2d 996, 1010 n. 18 (9th Cir.1988) ("924(c) ... is a sentence enhancement provision"). 3

Nevertheless, we recently stated that "section 924(c) creates distinct offenses rather than being merely a sentencing enhancement provision." United States v. Abreu, 962 F.2d 1447, 1451 (10th Cir.1992) (en banc) (citations omitted) (distinguishing conflicting authority and applying principles of lenity and strict construction based on distinction), petition for cert. filed, No. 96-67 (U.S. July 9, 1992). See also Simpson v. United States, 435 U.S. 6, 10, 98 S.Ct. 909, 912, 55 L.Ed.2d 70 (1978) ("[§ 924(c) is] an offense distinct from the underlying federal felony"); United States v. Martinez, 924 F.2d 209, 211 n. 2 (11th Cir.) (per curiam) ("924(c)(1) creates a separate offense and separate sentence"), cert. denied, --- U.S. ----, 112 S.Ct. 203, 116 L.Ed.2d 163 (1991); Munoz-Fabela, 896 F.2d at 910 ("[924(c)(1) ] constitutes an independent basis for criminal liability"); Hunter, 887 F.2d at 1003 ("924(c)(1) defines a separate crime rather than merely enhancing the punishment for other crimes"). This interpretation finds support in the statutory language which provides that the underlying offense need only be one for which the defendant "may be prosecuted in a court of the United States," and provides for a greater sentence for a "second or subsequent conviction under this subsection." 18 U.S.C. § 924(c)(1) (emphasis added).

Because § 924(c) is a separate offense, "a conviction and sentence under § 924(c) requires the full panoply of constitutional safeguards ordinarily granted criminal defendants." Martinez, 924 F.2d at 211 (citation omitted). While proof of the underlying crime is necessary to convict under § 924(c), a defendant need not be convicted of the underlying crime in order to be convicted of § 924(c). United States v. Wilkins, 911 F.2d 337, 338 n. 1 (9th Cir.1990); United States v. Robertson, 901 F.2d 733, 734 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 395, 112 L.Ed.2d 405 (1990); Munoz-Fabela, 896 F.2d at 911; Hunter, 887 F.2d at 1003. A defendant need not even be charged with the underlying crime to be convicted under § 924(c). United States v. Wilson, 884 F.2d 174, 176 (5th Cir.1989). Section 924(c) convictions have been upheld under an aiding and abetting theory, see United States v. Hamblin, 911 F.2d 551, 558 (11th Cir.1990) cert. denied, --- U.S. ----, 111 S.Ct. 2241, 114 L.Ed.2d 482 (1991), and under a Pinkerton theory. 4 See United States v. Johnson, 886 F.2d 1120, 1124 (9th Cir.1989), cert. denied, 494 U.S. 1089, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990); United States v. Reborn, 872 F.2d 589, 595-96 (5th Cir.1989); United States v. Diaz, 864 F.2d 544, 548-49 (7th Cir.1988), cert. denied, 490 U.S. 1070, 109 S.Ct. 2075, 104 L.Ed.2d 639 (1989). In short, notwithstanding the characterization of § 924(c)(1) as an "enhancement" statute, courts have uniformly treated § 924(c) as a substantive offense, distinct from the underlying crime.

In United States v. Sudduth, 457 F.2d 1198 (10th Cir.1972), the court held that the earlier version of § 924(c) "was intended to create a separate crime," and was not merely an "enhancement of penalty." 5 Id. at 1201-02. The court recognized that "[t]he general placement of the subsection obviously causes much of the present concern as to the intention of Congress," but, after thoroughly examining § 924(c)'s legislative history, reasoned that "[t]he manner in which section 924(c) was adopted by Congress and the fact that it originated in both 1968 and 1970 versions by way of floor amendment helps in understanding why the subsection was placed in the Act where it was." Id. at 1200. The court also noted that § 924(c)'s "dependen[ce] upon the basic felony" contributed to "the appearance that the matter relates to the enhancement of the penalty and not to the creation of a separate crime." Id. Nevertheless, § 924(c)'s "reference to 'subsequent convictions under this subsection' " and its dependence on "facts or inferences which will be disputed or contested and from which different inferences may be drawn ... mak[ing] the matter properly to be demonstrated to the satisfaction of the jury," led to the conclusion that § 924(c) was intended to create a separate crime. Id. at 1201. This reasoning is equally applicable to the present version of the statute.

The Supreme Court cited Sudduth with approval in recognizing that the...

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