U.S. v. Moore, 91-3182

• Decision Date: 04 March 1992
• Docket Number: No. 91-3182,91-3182
• Citation: 958 F.2d 310
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William J. MOORE, a/k/a Billy Moore, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 310

958 F.2d 310

UNITED STATES of America, Plaintiff-Appellee, v. William J. MOORE, a/k/a Billy Moore, Defendant-Appellant.

No. 91-3182.

United States Court of Appeals, Tenth Circuit.

March 4, 1992.

J. Steven Schweiker, Overland Park, Kan., for defendant-appellant.

Tanya J. Treadway, Asst. U.S. Atty., Kansas City, Kan. (Lee Thompson, U.S. Atty., and Julie A. Robinson, Asst. U.S. Atty., on the brief), for plaintiff-appellee.

Before HOLLOWAY, MOORE and BRORBY, Circuit Judges.

HOLLOWAY, Circuit Judge.

The basic question presented by this appeal is whether a defendant may be determined to have two separate convictions under 18 U.S.C. § 924(c)(1) on two counts charging him with using weapons during and in relation to one underlying drug trafficking offense if the sentences on the two § 924(c) convictions are made to run concurrently. We hold that under the proper interpretation of the statute, there can be only one violation and conviction under § 924(c). Accordingly, we must remand for correction of the judgment to reflect only one § 924(c) conviction for that statutory offense and for appropriate correction of the sentences. Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 1673-1674, 84 L.Ed.2d 740 (1985).

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant-appellant Moore appeals, following a resentencing, the judgment of convictions and sentences imposed in the district court. ¹ Following a trial to a jury, Moore was found guilty on one count charging possession with intent to distribute 51.4 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) (Count 1), and two counts of using firearms, two handguns and a rifle (Count 2) during and in relation to the drug trafficking offense charged in Count 1, and with using a Sten machine gun (Count 4) during and in relation to the drug trafficking offense. Initially, Moore was sentenced to 33 months' imprisonment on Count 1, five years on Count 2 to run consecutively to the sentence on Count 1, and ten years on Count 4 to run consecutively to the sentences imposed on Counts 1 and 2. ²

Defendant Moore argues on appeal that (1) the Double Jeopardy Clause of the Fifth Amendment forbids the imposition of two convictions under § 924(c)(1) on charges concerning the use of weapons in connection with the same underlying drug trafficking offense; and (2) the conviction on Count 4 was an unconstitutional, multiplicitous § 924(c)(1) conviction, and the conviction and sentence thereon must be vacated. We agree in part with defendant Moore's position concerning the validity of his convictions and sentences.

A. Moore I

In his first appeal, we vacated Moore's sentences on the two § 924(c) counts, holding that "where a defendant has been convicted of a single drug trafficking offense and more than one firearm was involved, a single violation of § 924(c)(1) occurs and multiple consecutive sentences may not be stacked to account for each firearm seized." United States v. Moore, 919 F.2d at 1474 (quoting United States v. Henning, 906 F.2d 1392, 1399 (10th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991)). Despite having vacated the sentences on Counts 2 and 4, we also addressed Moore's claim that the evidence was insufficient to support the jury verdicts on these two counts. We held that there was sufficient evidence to support the two verdicts of guilty and vacated the sentences imposed on Counts 2 and 4 and remanded for resentencing under 18 U.S.C. § 924(c)(1), affirming as to the other issues there argued. See Moore I, 919 F.2d at 1474-76, 1478.

B. The Remand

On remand, defendant Moore moved to dismiss Count 4 (the machine gun count carrying a ten-year sentence) on double jeopardy grounds, arguing that he was charged and found guilty on Count 2 (the other firearms used during and in relation to the drug trafficking offense) before he was charged and found guilty on Count 4. II R. at 4. The government asked that the court sentence Moore on Count 4 (the machine gun count) and that the court "run Count 2 concurrent to Count 4 so that he does, in fact, receive but one sentence for these two counts." II R. at 7.

The court referred to its study of our opinion in Moore I and stated that what was condemned by our opinion was stacking the sentences, imposing separate consecutive sentences for each firearm offense on which the defendant was found guilty. The court noted there was no question of sufficiency of the evidence because this court had held that there was sufficient evidence to support convictions on both Count 2 and Count 4. II R. at 7. Accordingly, the district court resentenced Moore to a "mandatory penalty of five years ... on Count 2 and a mandatory penalty of ten years ... on Count 4[,]" ordering the sentences to run "concurrently with one another" but consecutive to the sentence on Count 1. Id. at 8 (emphasis added). A special assessment of $50 on each count, or $150, was also imposed. See I R., Doc. 142. Moore timely appealed.

II. DISCUSSION

The version of 18 U.S.C. § 924(c)(1) under which Moore was convicted provided, in pertinent part, that:

Whoever, during and in relation to any crime of violence or drug trafficking crime, ..., 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 ..., be sentenced to imprisonment for five years, and if the firearm is a machine gun, ... to imprisonment for ten years.... Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried.

By its terms, this statute required the district court to impose a mandatory minimum sentence on Moore for the use of firearms which must run consecutively to his underlying drug trafficking offense. Moore does not challenge this reading. Rather, in this second appeal, Moore argues that the district court erred in failing to dismiss one of the § 924(c) counts on remand. Moore contends that because this court held in Henning that the use of multiple firearms during a single drug trafficking offense constitutes "a single violation of § 924(c)[,]" it necessarily follows that one of Moore's firearm convictions (that on Count 4) and the sentence thereon must be vacated. We agree that the Henning decision, as applied in Moore I, does not permit concurrent sentences for the use of multiple firearms during and in relation to a single underlying trafficking offense. This was not made clear in our disposition in Moore I, but we now do so.

In United States v. Henning, supra, as here, the defendant was found guilty of one drug trafficking offense and guilty of two violations of § 924(c) stemming from the use of several firearms. The district court imposed two separate sentences on Henning for the § 924(c) counts, running these sentences consecutively to the sentence for the underlying drug trafficking offense, and consecutively to each other. On appeal, this court vacated Henning's two § 924(c) sentences. Relying on United States v. Chalan, 812 F.2d 1302 (10th Cir.1987), and United States v. Henry, 878 F.2d 937 (6th Cir.1989), we held that "where a defendant has been convicted of a single drug trafficking offense and more than one firearm is involved, a single violation of § 924(c)(1) occurs and multiple consecutive sentences may not be stacked to account for each firearm seized." Henning, 906 F.2d at 1399 (emphasis added). ³

The formal disposition in the Henning case, vacating the sentences but not the convictions, was followed by this court in Moore I. As our opinion indicated, the district court on remand also left the convictions intact, only vacating one sentence. This disposition has raised the issues now present in this appeal.

We note in connection with these issues that in other cases we have vacated both "the conviction and sentence" in circumstances where there should have been only one conviction for only one violation of § 924(c). See United States v. Chalan, 812 F.2d 1302 (10th Cir.1987); United States v. Ross, 920 F.2d 1530, 1539 (10th Cir.1990) (vacating "the conviction and sentence" by applying the Henning rationale). Although in Henning we did not explain why we vacated only the sentences, the Henning decision clearly held that the use of multiple firearms during and in relation to a single drug trafficking offense constitutes "a single violation" of § 924(c). We believe that our prior opinions in Henning and Moore I must be modified to make a proper application of § 924(c) and to be in accord with the Supreme Court's ruling in Ball v. United States, supra 470 U.S. at 865, 105 S.Ct. at 1673-1674. ⁴

In Ball, a convicted felon was found guilty of both receiving and possessing a firearm, two independent federal offenses. The district court sentenced Ball to serve consecutive terms on the two firearm offenses. On appeal, the Fourth Circuit determined that the intent of Congress barred the assessment of consecutive sentences, and remanded with instructions to run the sentences concurrently. Although the Supreme Court agreed that the intent of Congress barred consecutive sentences, the Court reversed the Fourth Circuit's determination that multiple convictions under the firearms statutes there was permissible, stating:

The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credibility and...