U.S. v. Rawlings, 86-8475

• Decision Date: 20 July 1987
• Docket Number: No. 86-8475,86-8475
• Citation: 821 F.2d 1543
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles A. RAWLINGS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1543

821 F.2d 1543

UNITED STATES of America, Plaintiff-Appellee, v. Charles A. RAWLINGS, Defendant-Appellant.

No. 86-8475.

United States Court of Appeals Eleventh Circuit.

July 20, 1987.

Rehearing and Rehearing En Banc Denied Sept. 3, 1987.

Thomas J. Waldrop, Federal Defender Program, Inc., Atlanta, Ga., for defendant-appellant.

Charles E. Brown, Julie Carnes, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY and KRAVITCH, Circuit Judges, and MORGAN, Senior Circuit judge.

MORGAN, Senior Circuit Judge:

The issue in this appeal is whether the enhanced penalty provision of 18 U.S.C. Sec. 924(c) (Supp. III 1985) ¹ applies to two separate offenses charged in the same indictment. A grand jury indicted appellant Charles Rawlings for robbing the National Bank of Georgia on February 12, 1986 and the Citizens and Southern National Bank on March 4, 1986 (Counts one and three in violation of 18 U.S.C. Sec. 2113(d) (1982)); for using a firearm during the two robberies (Counts two and four in violation of 18 U.S.C. Sec. 942(c)); and for receiving a firearm that had traveled in interstate commerce after Rawlings had been convicted of a crime punishable by more than a year in prison (Count five in violation of 18 U.S.C. Sec. 922(h) (1982)). At appellant's jury trial, the district court granted appellant's motion to sever count five from the remaining counts of the indictment. ² The district court acted as trier of fact on that count.

After a jury convicted appellant of the first four counts, and the court found appellant guilty of count five, the district court sentenced appellant in the following manner:

Count One--20 years (February 1986 bank robbery)

Count Two--5 years, consecutive to Count One (February 1986 Sec. 924(c) charge)

Count Three--20 years, concurrent to Count One (March 1986 bank robbery)

Count Four--5 years, concurrent to Count Two, consecutive to Count Three (March 1986 Sec. 924(c) charge)

Count Five--probation (receipt of a firearm by a convicted felon).

In addition, the district court ordered restitution to the banks in the amount of $2,333.00.

Thereafter, the government filed a sentencing memorandum in which it argued that the court should not have sentenced appellant to two concurrent sentences for violations of 18 U.S.C. Sec. 924(c) and that the court should have applied the enhanced penalty provision of Sec. 924(c). Section 924(c) provides that anyone using or carrying a gun during a crime of violence shall be subject to imprisonment for five years, and such prison time shall not run concurrently with any other term of imprisonment including that imposed for the original crime of violence. In the case of a person's "second or subsequent conviction of this subsection, such person shall be sentenced to imprisonment for ten years." 18 U.S.C. Sec. 924(c). ³

In response to the government's sentencing memorandum the district court realigned appellant's sentence in the following manner:

Count One--five years (February 1986 bank robbery)

Count Two--five years, consecutive to Count One (February 1986 Sec. 924(c) charge)

Count Three--five years, consecutive to Count Two (March 1986 bank robbery)

Count Four--ten years, consecutive to Count Three (March 1986 Sec. 924(c) charge)

Count Five--probation (receipt of a firearm by a convicted felon). ⁴

Appellant then appealed the application of the enhanced penalty provision of Sec. 924(c).

The version of Sec. 924(c) at issue here is the third amendment ⁵ of this section. We can find no case law interpreting the "second or subsequent conviction" language found in each of the versions of Sec. 924(c), so we must rely on our reading of the statute. Of course, the starting point for interpreting this statute is the language of the statute itself. This language is conclusive, absent a clearly expressed legislative intent to the contrary. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766, 772 (1980); Birmingham Trust National Bank v. Case, 755 F.2d 1474, 1477 (11th Cir.1985). We do not need to review the legislative history of this statute unless we find the plain meaning of the terms is not readily apparent. National Wildlife Federation v. Marsh, 721 F.2d 767, 774 (11th Cir.1983). When examining this statute, we must assume that Congress used the words of the statute as they are commonly and ordinarily understood. United States v. Yeatts, 639 F.2d 1186, 1189 (5th Cir. Unit B), cert. denied, 452 U.S. 964, 101 S.Ct. 3115, 69 L.Ed.2d 976 (1981); United States v. Porter, 591 F.2d 1048, 1053 (5th Cir.1979). Furthermore, this court should try to construe the statute so each of its provisions is given its full effect; any interpretation which renders parts or words in a statute inoperative or superfluous is to be avoided. Weinberger v. Hynson, Westcott and Dunning, Inc., 412 U.S. 609, 633, 93 S.Ct. 2469, 2485, 37 L.Ed.2d 207, 225 (1973).

With these rules of statutory construction in mind, we now turn to the language of Sec. 924(c). This section provides an enhanced ten-year prison sentence for a defendant for his "second or subsequent conviction" of using a firearm during a crime of violence. Congress presented two alternatives for triggering the enhancement provision: second or subsequent conviction. We assume that distinction serves some purpose. Subsequent, as defined by Webster's Dictionary, means "following in time, order, or place." The definition of "second," however, does not have such limitations. In the context of the statute, it only means one more after the first, or another or additional conviction. Based on this broad "second or subsequent conviction" language, we find that appellant's second conviction under Sec. 924(c), even though in the same indictment as his first conviction, legitimately triggers the enhancement provision.

The intent of Congress when passing Sec. 924(c) supports this reading of the statute. During the congressional debates over the section, ⁶ Representative Poff, one of the sponsors of the bill, stated that the purpose of the sentencing provisions of Sec. 924(c) was:

To persuade the man who is tempted to commit a federal felony to leave his gun at home. Any such person should understand that if he uses his gun and is caught and convicted, he is going to jail. He should further understand that if he does so a second time, he is going to jail for a longer time. 114 Cong.Rec. 22231 (1968).

Representative Rogers reiterated this view:

[A]ny person who commits a crime and uses a gun will know that he cannot get out of serving a penalty in jail. And if he does it a second time, there will be a stronger penalty. 114 Cong.Rec. 22237 (1968).

Congress, as evidenced by the statements of Poff and Rogers, intended to discourage any offender from using a firearm during a crime of violence, and if the offender used a weapon the second time, he could expect an enhanced penalty. See United States v. Eagle, 539 F.2d 1166 (8th Cir.1976), cert. denied, 429 U.S. 1110, 97 S.Ct. 1146, 51 L.Ed.2d 563 (1977) ("Sec. 924(c)'s purpose is to prevent the carrying and use of firearms in the commission of federal felonies"). Appellant, however, reads the statute to require an offender be convicted and sentenced under two separate indictments before the enhanced penalty provision could apply. The language of the statute and Congress' desire to deter and punish firearm use does not support appellant's understanding of Sec. 924(c).

Congress, if it wished to do so, could have limited the statute in the manner suggested by appellant. For instance, in a 1970 habitual offender statute, 18 U.S.C. Sec. 3575, Congress provided that a defendant is a special dangerous offender subject to an enhanced punishment for commission of a federal felony if he has previously been convicted of two or more offenses committed on occasions different from one another and from the charged federal felony, has been imprisoned for one or more of these convictions prior to the commission of the instant felony, and less than five years have elapsed between commission of the present felony and his release from imprisonment for the prior conviction. Congress was not so specific when drafting this statute. We must interpret the statute as it is written, not how appellant wishes Congress had drafted it. We find the "second or subsequent conviction" language of Sec. 924(c) unambiguous, and the statute does not include the limitations appellant urges.

Any other reading of the statute could lead to incongruous results. "The interpretation [of the statute] should be reasonable and where the result of one interpretation is unreasonable, while the result of another interpretation is logical, the latter should prevail." Sierra Club v. Train, 557 F.2d 485, 490 (5th Cir.1977) citing C. Sands, Sutherland's Statutory Construction, Sec. 45.12 (4th ed. 1973). According to the appellant, the enhanced penalty provision of 18 U.S.C. Sec. 924(c) applies only to a defendant who had earlier been charged, convicted and sentenced under a different indictment for violation of Sec. 924(c). If the government, to insure judicial economy, charges two separate Sec. 924(c) offenses in the same indictment, then the defendant could not receive the mandatory ten-year sentence of Sec. 924(c) under appellant's interpretation of the statute. To avoid such a result, a prosecutor could simply bring the two offenses in two separate indictments, thereby insuring that one of the convictions would occur later in time than the other. Such manipulation of the court system would add to the court's caseload and serve no useful purpose. We do not think Congress intended the enhanced penalty for a repeat offender of Sec. 924(c) to hinge on the machinations of the prosecutor.

Furthermore, appellant's interpretation of the statute could defeat Congress's intent to punish...