U.S. v. Jermaine Michael Julian

• Decision Date: 22 February 2011
• Docket Number: No. 09–13673.,09–13673.
• Citation: 633 F.3d 1250
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Jermaine Michael JULIAN, a.k.a. Kid, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

633 F.3d 1250

22 Fla. L. Weekly Fed. C 1788

UNITED STATES of America, Plaintiff–Appellee,

v.Jermaine Michael JULIAN, a.k.a. Kid, Defendant–Appellant.

No. 09–13673.

United States Court of Appeals, Eleventh Circuit.

Feb. 22, 2011.

Patrick D. Doherty (Court–Appointed), Brown & Doherty, P.A., St. Petersburg, FL, for Julian.Judy K. Hunt, Tampa, FL, for U.S.Appeal from the United States District Court for the Middle District of Florida.Before WILSON, PRYOR and ANDERSON, Circuit Judges.PRYOR, Circuit Judge:

The issue in this appeal is whether the district court erred when it held that it was required to impose consecutive sentences on a defendant who committed murder with a firearm in the course of a crime of violence and a drug trafficking crime, 18 U.S.C. § 924(j). Sentences for the use of a firearm in the course of a crime of violence or drug trafficking crime must run consecutive to any other sentences, id. § 924(c)(1)(D)(ii), but section 924(j), which applies to the same conduct that causes death, does not mention a requirement of consecutive sentencing. Jermaine Michael Julian appeals his consecutive sentences of life terms of imprisonment on the ground that the district court erred when it held that sentences under section 924(j) must run consecutively. Julian argues that the district court had the discretion to impose concurrent sentences because section 924(j) creates a separate offense not governed by the requirement of consecutive sentences in section 924(c). The United States responds that the prohibition of concurrent sentences in section 924(c) applies to sentences under section 924(j) because section 924(j) creates a sentencing factor, not a separate offense. Two of our sister circuits have adopted the interpretation advanced by the United States, but we disagree with those decisions. Because Julian's interpretation of section 924(j) is supported by the plain text of the statute, we vacate Julian's sentence and remand for resentencing.

I. BACKGROUND

On October 19, 2006, Jermaine Michael Julian, David Jones, and at least one other individual robbed members of a local gang known as the “Valley Boyz” at a residence in Bartow, Florida. Julian and the other robbers confronted three members of the Valley Boyz: Carlton Potts, Prayer Hamilton, and Tyrone Williams. Julian shot Potts once in the chest. Julian and the other robbers then stole money, cocaine, and firearms from the residence before they fled. Potts later died from the gunshot wound.

A confidential informant told police that Julian was involved in the crimes, and Williams later identified Julian from a set of photographs. When the authorities arrested Julian, he was in possession of two handguns, including one linked to the murder of Potts. Julian admitted his involvement in the robbery, but denied that he had murdered Potts. A federal grand jury indicted Julian for the murder of Potts and for other offenses. The indictment charged in two counts that Julian “knowingly and intentionally used a firearm, during and in relation to” a crime of violence and a drug trafficking crime, “and in the course of using said firearm ... did kill Carlton Potts ... in violation of Title 18, United States Code, Sections 924(c)(1)(A), 924(j)(1) and 1111(a) and 2.” The indictment charged Jones with aiding and abetting Julian in the two counts of murder. The indictment also charged Julian and Jones with robbery, id. §§ 2, 1951; conspiracy to commit robbery, id. § 1951; being a felon in possession of a firearm, id. § 922(g)(1); possession of marijuana with intent to distribute, id. § 2; 21 U.S.C. § 841(a)(1), (b)(1)(D); possession of cocaine with intent to distribute, 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1), (b)(1)(C); and conspiracy to possess cocaine with intent to distribute, 21 U.S.C. §§ 841(b)(1)(B)(ii)(II), 846. Jones pleaded guilty to all charges and received a prison sentence of 780 months. See United States v. Jones, 317 Fed.Appx. 896 (11th Cir.2008).

At trial, the jury convicted Julian of all eight charges. The district court then conducted a sentencing phase, and the jury imposed a sentence of life imprisonment instead of the death penalty for each count of murder.

Julian objected to the recommendation in the presentence investigation report that he be sentenced to consecutive life sentences for the counts of murder, but the district court overruled Julian's objection. The district court ruled that it was required to impose consecutive sentences based on the provision that “no term of imprisonment imposed on a person under [subsection (c)] shall run concurrently with any other term of imprisonment imposed on the person.” 18 U.S.C. § 924(c)(1)(D)(ii). The district court reasoned that the requirement of consecutive sentencing applies to “all offenses in which [924(c)(1)] is implicated,” including section 924(j). The court then sentenced Julian to two life sentences on the murder charges and a total sentence of 115 years for the other crimes and ordered that all of the sentences run consecutively.

II. STANDARD OF REVIEW

“We review questions of statutory interpretation de novo.” United States v. Phaknikone, 605 F.3d 1099, 1107 (11th Cir.), cert. denied, ––– U.S. ––––, 131 S.Ct. 643, 178 L.Ed.2d 486 (2010).

III. DISCUSSION

Julian and the United States present starkly contrasting interpretations of section 924(j) and its relation to section 924(c). Julian argues that the district court had the discretion to impose concurrent sentences based on the plain language of sections 924(c)(1)(D)(ii) and 924(j). The United States argues that section 924(j) establishes a sentencing factor, not a separate offense, and section 924(c)(1)(D)(ii) required the district court to impose consecutive sentences for an underlying violation of section 924(c). We agree with Julian.

To resolve this issue, we begin with the text of section 924(c), about which there is little dispute. Both parties agree that section 924(c) creates an offense and a mandatory minimum sentence for that offense as follows: “[A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... 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 of violence or drug trafficking crime” receive a sentence of “not less than five years.” 18 U.S.C. § 924(c)(1)(A)(i). Both parties also agree that a criminal who violates section 924(c) is subject to a higher mandatory minimum sentence if he brandishes or discharges a firearm or uses a certain type of firearm, such as a machinegun. Id. § 924(c)(1)(A)(ii)-(iii), (c)(1)(B)(i)-(ii). Both parties agree that, for the offense created by section 924(c), concurrent sentences are prohibited as follows: “[N]o term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person.” Id. § 924(c)(1)(D)(ii).

The parties disagree about how to understand section 924(j), which prescribes as follows sentences for conduct that violates section 924(c) and leads to death:

A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall—

(1) if the killing is a murder (as defined in section 1111) be punished by death or by imprisonment for any term of years or for life; and

(2) if the killing is manslaughter (as defined in section 1112), be punished as provided in that section.

Id. § 924(j). Julian contends that section 924(j) creates a separate offense and a punishment that is not governed by the prohibition of concurrent sentences in section 924(c)(1)(D)(ii). The United States argues that section 924(j) creates a sentencing factor, not a separate offense, and is governed by the prohibition of concurrent sentences.

Julian's interpretation is supported by the plain language of section 924(j) and section 924(c)(1)(D)(ii). Section 924(c) prohibits concurrent sentences, but this prohibition applies only to “a term of imprisonment imposed on a person under this subsection.” Id. § 924(c)(1)(D)(ii). Section 924(j), not section 924(c), provided Julian's sentence. This reading is consistent with decisions of our sister circuits that have declined to read section 924( o), which punishes “conspir[acies] to commit an offense under subsection (c),” id. § 924( o), as requiring consecutive sentences. See United States v. Clay, 579 F.3d 919, 933 (8th Cir.2009); United States v. Fowler, 535 F.3d 408, 422 (6th Cir.2008).

The United States, quoting United States v. Battle, 289 F.3d 661, 666 (10th Cir.2002), urges that “section 924(j)(1) does not establish a crime discrete from that defined in section 924(c), but merely ‘describes the sentencing factors that must be proved in order to impose a consecutive sentence of death, life imprisonment or a term of years[ ]’ ” for a violation of section 924(c), but we disagree. An element is essential to the definition of an offense, but a sentencing factor guides the discretion of a court in sentencing an offender based on his characteristics or the manner in which he committed the offense. See Castillo v. United States, 530 U.S. 120, 126, 120 S.Ct. 2090, 2094, 147 L.Ed.2d 94 (2000). “Elements of a crime must be charged in an indictment and proved to a jury beyond a reasonable doubt .... Sentencing factors, on the other hand, can be proved to a judge at sentencing by a preponderance of the evidence.” United States v. O'Brien, ––– U.S. ––––, 130 S.Ct. 2169, 2174, 176 L.Ed.2d 979 (2010). See also McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67 (1986). The facts that the government must prove for a criminal to receive a sentence—including a potential sentence of death—under section 924(j) comprise elements, not sentencing factors.

The Supreme Court has addressed twice whether other provisions of section 924(c) establish elements or sentencing factors, and these decisions...