U.S. v. Terry

• Decision Date: 12 June 1996
• Docket Number: 95-5478,Nos. 95-5473,95-5474,s. 95-5473
• Citation: 86 F.3d 353
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Lewis Charles TERRY, Jr.; Carlos Lee Bishop, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellee, v. Carlos Lee BISHOP, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lewis Charles TERRY, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 353

86 F.3d 353

UNITED STATES of America, Plaintiff-Appellant, v. Lewis Charles TERRY, Jr.; Carlos Lee Bishop, Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellee, v. Carlos Lee BISHOP, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Lewis Charles TERRY, Jr., Defendant-Appellant.

Nos. 95-5473, 95-5474, 95-5478.

United States Court of Appeals, Fourth Circuit.

Argued April 5, 1996.

Decided June 12, 1996.

ARGUED: Lisa J. Stark, United States Department of Justice, Washington, D.C., for Appellant. James Robert Cromwell, Vogel & Cromwell, L.L.C., Roanoke, Virginia, for Appellees. ON BRIEF: Deval L. Patrick, Assistant Attorney General, Dennis J. Dimsey, United States Department of Justice, Washington, D.C., for Appellant. Sharon Chickering, DLC Trial Lawyers, P.C., Roanoke, Virginia, for Appellee Terry.

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and BUTZNER, Senior Circuit Judge.

Reversed in part, vacated in part, and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Chief Judge WILKINSON and Senior Judge BUTZNER joined.

OPINION

MICHAEL, Circuit Judge:

Because they shot at an occupied vehicle (a crime under Virginia law) while in a national forest, Lewis Charles Terry and Carlos Lee Bishop were convicted for violating the Assimilative Crimes Act, 18 U.S.C. § 13(a) (the "ACA"), and for using a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924(c). At sentencing the district court dismissed the § 924(c) count as to both defendants on double jeopardy grounds. The government appeals the dismissal of the gun count, and the defendants cross-appeal their sentences on the ACA count. Both defendants claim that the district court erred in applying the "Aggravated Assault" guideline, see U.S.S.G. § 2A2.2(a), and Terry further claims that the court erred in failing to accord him "minor participant" status, see U.S.S.G. § 3B1.2(b).

We reverse the dismissal of the § 924(c) count, and we order that the defendants' convictions on that count be reinstated. We affirm the district court's sentencing determinations on the ACA count, except for one matter. Because reinstatement of the convictions on the § 924(c) count will affect how the sentence for the ACA count is calculated, we vacate the sentences and remand for resentencing on both counts.

I.

Drunk after a successful day of turkey hunting, Terry and Bishop drove along Wildlife Road in the Jefferson National Forest, a federal reserve located in Virginia. They were in Bishop's full sized station wagon. Terry was driving and Bishop was riding in the passenger's seat. Two shotguns and one dead turkey were in the back.

Raymond Ellis drove up behind Terry and Bishop in his pickup truck. Because Wildlife Road is very narrow, Terry pulled over to let Ellis pass. As Ellis passed, Terry noticed that Ellis is black. Terry and Bishop are white. Terry said to Bishop, "Let's kill this son of a bitching nigger." Bishop reached into the back of the station wagon for his twelve-gauge shotgun. As Terry drove, Bishop loaded his gun and shot at Ellis' truck. After Bishop began shooting, Ellis accelerated in an effort to get away, but Terry sped up as well, allowing Bishop to continue to reload and shoot. Bishop admitted that he fired several times, but he was not sure of the exact number of shots. Ellis eventually escaped unharmed, but his truck required $2,869.89 worth of repairs.

A federal grand jury in the Western District of Virginia indicted Bishop and Terry on two counts. The first count charged that they "did unlawfully and maliciously shoot at an occupied vehicle, putting in peril the life of the occupant therein," in violation of Va.Code Ann. § 18.2-154, assimilated as a federal charge under the ACA, 18 U.S.C. § 13(a). The second count charged that Bishop and Terry used or carried a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). Each man was convicted of both counts, Bishop upon a guilty plea and Terry after a jury trial. At the defendants' sentencing the district court (on its own motion) dismissed the § 924(c) count, holding that to convict for both counts would violate the Fifth Amendment's prohibition against double jeopardy. On the remaining ACA count, Terry was sentenced to 62 months of imprisonment and Bishop to 25 months. ¹

II.

We agree with the government that conviction on both the ACA count and the gun count is not double jeopardy. Each offense contains one statutorily-mandated element that the other does not, and Congress has not expressed a clear intention that multiple punishment not be imposed. Accordingly, the district court erred in dismissing the § 924(c) count.

If Congress clearly authorizes multiple punishments for the same act or transaction, the Double Jeopardy Clause is not offended when the multiple punishments are imposed after a single trial. Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981). The task, then, is to determine whether Congress intended multiple punishment to apply.

Our inquiry into Congressional intent is guided by the Supreme Court's decision in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). We first examine whether proof of each crime "requires proof of an additional fact which the other does not." Id. at 304, 52 S.Ct. at 182. If the statutorily-defined elements of the crimes charged overlap (for example, where one crime is a lesser-included offense of the other), then a court must presume that Congress did not intend multiple punishment. Rutledge v. United States, --- U.S. ----, ---- & n. 6, 116 S.Ct. 1241, 1245 & n. 6, 134 L.Ed.2d 419 (1996). This presumption may be overcome only if Congress has otherwise clearly indicated its desire to authorize multiple punishment. Id. at ---- - ----, 116 S.Ct. at 1247-49; Albernaz, 450 U.S. at 338-40, 101 S.Ct. at 1141-43; Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980). If, however, the statutory elements of the two crimes do not overlap, then multiple punishments are presumed to be authorized absent a clear showing of contrary Congressional intent. Albernaz, 450 U.S. at 340, 101 S.Ct. at 1142-43; United States v. Allen, 13 F.3d 105, 108-09 (4th Cir.1993).

The district court found that the elements of the two crimes charged overlap, saying "you have to actually pick up the weapon and fire into the vehicle to be guilty of" violating the Virginia statute. But a careful examination of the statutes at issue here reveals that the district court erred in its application of Blockburger, and thereby misread Congressional intent.

The ACA provides in relevant part:

Whoever within [the special maritime and territorial jurisdiction of the United States] is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.

18 U.S.C. § 13(a). In this case the federalized offense was the Virginia crime of shooting or throwing a missile at an occupied vehicle:

Any person who maliciously shoots at, or maliciously throws any missile at or against, any ... motor vehicle or other vehicles when occupied by one or more persons, whereby the life of any person ... in such motor vehicle or other vehicle, may be put in peril, shall be guilty of a Class 4 felony.

Va.Code Ann. § 18.2-154 (1995 Supp.).

The second count charged was a violation of 18 U.S.C. § 924(c), which provides that a person who, "during and in relation to any crime of violence [or drug-trafficking offense] for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall" be sentenced to five years imprisonment, such sentence to run consecutively to any other sentence imposed under any other count of conviction.

In fact, the elements of the two crimes do not overlap. Section 924(c) does not require the involvement of a motor vehicle, nor does it require that any person's life "be put in peril," as the Virginia statute requires. Contrary to what the district court believed, the Virginia statute does not require the involvement of a firearm, as § 924(c) requires. By its terms, the Virginia statute prohibits the shooting or throwing of "any missile" at or against an occupied vehicle. Thus, a person may violate the Virginia statute by standing on an overpass and throwing a rock at a car passing beneath. See Willis v. Commonwealth, 10 Va.App. 430, 393 S.E.2d 405, 412-13 (1990); see also Highway Violence a Gratuitous Death, Virginian-Pilot & Ledger Star (Norfolk, Va.), Apr. 11, 1995, at A12 (rock); Suffolk Crime Report, Virginian-Pilot & Ledger Star (Norfolk, Va.), Nov. 10, 1994, at 22 (pumpkin); Rock-Throwing on I-66, Washington Post, Sept. 3, 1993, at B4 (rocks and bottles). Even though in this case the missile of choice was fired from a gun, for purposes of double jeopardy analysis we examine only the statutory elements to determine if the elements of the two crimes charged necessarily overlap. Blockburger, 284 U.S. at 304, 52 S.Ct. at 182; Allen, 13 F.3d at 109 n. 4. Because each crime charged contains an element that the other does not, the statutes pass the Blockburger test. Accordingly, we presume that Congress intended § 924(c)'s mandatory five-year consecutive sentence to be imposed here.

The burden thus falls on the defendants to overcome this presumption, a burden they have failed to carry. Section 924(c) by its terms applies to "any crime of violence ... which [ ] may be prosecuted in a court of the United States" (emphasis supplied). Furthermore, the section also says, "Notwithstanding any other provision of law, the court shall not place on...