U.S. v. Nava-Sotelo, No. 02-2338.

• Decision Date: 31 December 2003
• Docket Number: No. 02-2338.
• Citation: 354 F.3d 1202
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Adalberto NAVA-SOTELO aka Robert Montoya, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

354 F.3d 1202

UNITED STATES of America, Plaintiff-Appellant, v. Adalberto NAVA-SOTELO aka Robert Montoya, Defendant-Appellee.

No. 02-2338.

United States Court of Appeals, Tenth Circuit.

December 31, 2003.

David C. Iglesias, United States Attorney, Norman Cairns, Assistant United States Attorney, Albuquerque, New Mexico for Plaintiff-Appellant.

Stephen P. McCue, Federal Public Defender, Robert F. Kinney, Assistant Federal Public Defender, and Shari Lynn Allison, Research & Writing Specialist, Office of the Federal Public Defender, Las Cruses, New Mexico, for Defendant-Appellee.

Before SEYMOUR, MURPHY and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

Along with other crimes, Adalberto Nava-Sotelo was convicted for the use and carrying of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). The issue presented is whether a mandatory ten-year consecutive sentence for discharge of firearm must be imposed if the discharge was accidental. The district court answered in the negative. United States v. Nava-Sotelo, 232 F.Supp.2d 1269 (D.N.M.2002). We answer in the affirmative and reverse.¹

I. Background

On May 8, 2001, Nava-Sotelo's brother, Oswaldo, an inmate at the La Tuna federal prison in Anthony, Texas, was transported by two prison officers, Javier Franco and Jose Luis Almedia, to a dental clinic in Las Cruces, New Mexico, for oral surgery.² Following the surgery, Franco and Almedia escorted Oswaldo to a prison transport van. As Franco and Almedia were entering the van, Nava-Sotelo approached them with a loaded firearm in his hand.³ In an attempt to disarm Nava-Sotelo, Franco grabbed for the gun. A struggle ensued and the firearm discharged into the ground; Nava-Sotelo's finger was on the trigger.⁴

Thereafter, the brothers subdued Almedia and Franco and placed them in the back of the prison transport van. Nava-Sotelo left the scene in his pick-up truck while Oswaldo drove off in the van. Law enforcement officers pursued both vehicles. The officers, using a tire spike device, punctured one of the van's tires. Rather than surrender, Oswaldo shot himself to death in the van. Officers also deployed a tire spike device in the path of Nava-Sotelo's truck, disabling it. Nava-Sotelo was subsequently arrested.

Nava-Sotelo was charged with two counts of kidnaping an officer or employee of the United States while in the performance of official duties in violation of 18 U.S.C. § 1201(a)(5) (Counts 1 and 2); two counts of assault on an officer or employee of the United States while in the performance of official duties in violation of 18 U.S.C. § 111(a)(1) and (b) (Counts 3 and 4); one count of possession, use, or discharge of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count 5); and one count of instigating or assisting an escape of a federal inmate in violation of 18 U.S.C. § 752(a) (Count 6). On September 20, 2001, he pled guilty to all six counts.

Prior to sentencing, the district court held a three-day evidentiary hearing to address the numerous issues raised by Nava-Sotelo in his objections to the presentence report and sentencing memorandum. Among those issues, and relevant to this appeal, was the nature and extent of the mandatory minimum sentence requirements of § 924(c). Nava-Sotelo argued then, as he argues now, that he should receive only a seven-year consecutive sentence on Count 5, rather than a ten-year sentence, because the discharge of the firearm was accidental and involuntary. The district court agreed. Accordingly, on October 21, 2002, Nava-Sotelo was sentenced to thirty-seven months imprisonment on Counts 1, 2, 3, 4 and 6, all to run concurrently with each other, and eighty-four months imprisonment on Count 5, to run consecutive to the sentences imposed in Counts 1, 2, 3, 4 and 6.⁵ The government appealed as to Count 5. We have jurisdiction under 18 U.S.C. § 3742(b)(1) and 28 U.S.C. § 1291.

II. Discussion

For purposes of this appeal the government accepts the district court's factual finding that the discharge of the firearm was accidental, even involuntary. Nonetheless, it insists the language of § 924(c) plainly requires the district court to impose a ten-year consecutive sentence; whether the discharge of the firearm was intentional or accidental is of no moment. We agree.

"We review [a] district court's interpretation of a criminal statute de novo." United States v. Romero, 122 F.3d 1334, 1337 (10th Cir.1997) (citing United States v. Rothhammer, 64 F.3d 554, 557 (10th Cir.1995)) cert. denied, 523 U.S. 1025, 118 S.Ct. 1310, 140 L.Ed.2d 474 (1998). "In interpreting a statute, we begin with the plain language of the statute itself." Id. (citing United States v. Green, 967 F.2d 459, 461 (10th Cir.1992)). "If the terms of the statute are unambiguous, our inquiry ends." Id.

Section 924(c) provides in relevant part:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who during and in relation to any crime of violence ... for which the person may be prosecuted in a court of the United States, 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 ... —

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

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

. . .

(D) Notwithstanding any other provision of law —

. . .

(ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.

Under its plain language, § 924(c) does not require a defendant to knowingly or intentionally discharge the firearm. But that does not dispose of the issue raised by Nava-Sotelo — whether scienter is, necessarily, implied.

Nava-Sotelo relies on three Supreme Court cases to support his argument that for sentencing purposes a mens rea requirement must be read into the brandishing and discharge provisions of § 924(c). In Staples v. United States, 511 U.S. 600, 605-06, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), the Supreme Court noted that offenses lacking a mens rea element are disfavored and "some indication of congressional intent, express or implied, is required to dispense with [it] as an element of a crime." It then implied a mens rea element in the National Firearms Act, holding that the government must prove a defendant knew his firearm had the requisite characteristics to bring it within the statutory definition of a machine gun. In doing so, the Court recognized the common law presumption favoring mens rea in criminal statutes. Id. In Liparota v. United States, 471 U.S. 419, 423-24, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), and Morissette v. United States, 342 U.S. 246, 248, 270-71, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the statutes at issue specified a mens rea but were unclear as to which elements of the offense it applied. In each case, the Supreme Court rejected the government's interpretation of the statute because its interpretation would result in criminalizing otherwise innocuous conduct.

Faithful to that reasoning we have included knowledge as an implied element of § 924(c). United States v. Dahlman, 13 F.3d 1391, 1400 (10th Cir.1993), cert. denied, 511 U.S. 1045, 114 S.Ct. 1575, 128 L.Ed.2d 218 (1994). Therefore, to establish a violation of § 924(c), the government must prove the following: (1) the defendant committed a drug trafficking offense or crime of violence; (2) the defendant knowingly used or carried a firearm, and (3) the defendant used or carried the firearm "during and in relation to" the commission of the crime. See United States v. McKissick, 204 F.3d 1282, 1292 (10th Cir. 2000); United States v. Shuler, 181 F.3d 1188, 1189-90 (10th Cir.1999); United States v. Lampley, 127 F.3d 1231, 1240 (10th Cir.1997) (emphasis added), cert. denied, 522 U.S. 1137, 118 S.Ct. 1098, 140 L.Ed.2d 153 (1988). Seeking to exploit this precedent, Nava-Sotelo asks us to engraft the implied mens rea element onto the sentencing provisions [brandishing and discharge] of § 924(c)(1). He is shoveling sand against the tide because the Supreme Court has specifically held that § 924(c)'s brandishing and discharge provisions are "sentencing factors to be found by the judge, not offense elements to be found by the jury." Harris v. United States, 536 U.S. 545, 556, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). As a result, no mens rea is required. Our decision in United States v. Eads, 191 F.3d 1206 (10th Cir.1999), cert. denied, 530 U.S. 1231, 120 S.Ct. 2663, 147 L.Ed.2d 277 (2000), is compelling.

Eads, like Nava-Sotelo, was convicted of using or carrying a firearm in connection with a drug trafficking offense or crime of violence under § 924(c). Id. at 1208-09. The district court imposed a thirty-year sentence for this conviction based on 18 U.S.C. § 924(c)(1)(B)(ii), which provides a thirty-year mandatory minimum sentence if the firearm possessed is a machine gun.⁶ Id. at 1212. On appeal, the defendant argued that the district court erred in imposing a thirty-year sentence pursuant to this statute absent a finding that he knew one of the firearms he possessed was a machine gun. Id. We concluded the type of firearm used or carried under § 924(c) was a sentencing enhancement rather than an element of the offense and, therefore, a separate mens rea for the type of weapon need not be proven.⁷ Id. at 1213-14.

The same is true in this case. Because the brandishing and discharge provisions of § 924(c) are sentencing factors, not elements, the government was...