835 F.3d 277
2d Cir.2016Background
- Justin Simmons, a Newburgh Bloods member, was convicted by jury of RICO participation and conspiracy (18 U.S.C. §§ 1961, 1962), a narcotics conspiracy (21 U.S.C. § 846), and two § 924(c) firearms counts tied respectively to the racketeering counts and the narcotics count.
- The indictment tied the racketeering-related § 924(c) count to three discrete firearm incidents (Jan 2008 arrest gun; a 2009 gun transfer; a possession on Lander St.) and the narcotics-related § 924(c) count to “block guns” hidden on Lander St. for drug sales protection.
- The jury was instructed that Count Seventeen (racketeering-related § 924(c)) was connected to the racketeering charges and Count Thirteen (narcotics-related § 924(c)) to the narcotics conspiracy; no instruction requiring the jury to find the § 924(c) incidents occurred on separate occasions was requested or given.
- At sentencing the court imposed consecutive § 924(c) sentences: five years for one count and a 25-year mandatory minimum under § 924(c)(1)(C) for a “second or subsequent” conviction, yielding a total 50-year sentence when combined with other counts; Simmons did not object below.
- On appeal Simmons argued (1) the “second or subsequent” fact should have been found by the jury and (2) the two § 924(c) convictions might be multiplicitous because they overlapped in time and predicate conduct.
Issues
| Issue | Government's Argument | Simmons' Argument | Held |
|---|---|---|---|
| Whether the fact of a “second or subsequent” § 924(c) conviction must be found by a jury | The fact of a prior conviction is a sentencing factor and may be found by the judge | Alleyne requires any fact that increases mandatory minimums be found by a jury, so the second-or-subsequent status should be decided by a jury | Judge may determine the “second or subsequent” status; Apprendi/Almendarez‑Torres remain controlling; no plain error |
| Whether the two § 924(c) convictions are multiplicitous | Separate firearms incidents were proved and the government linked different guns to each § 924(c) count | Overlap in time and narcotics predicates could mean the convictions punished the same conduct twice | Not multiplicitous: evidence and government argument showed distinct firearm incidents; no plain error |
| Whether failure to instruct jury that § 924(c) counts require separate occasions was reversible error | No plain error where evidence and summation reasonably distinguished the incidents | District court should have instructed jury that counts required separate conduct | No plain error; omission did not render convictions multiplicitous |
| Whether the district court could implicitly find separateness at sentencing | Sentencing judge may determine separateness as part of finding prior convictions/facts relevant to sentencing | Only a jury should make findings that increase mandatory minimums | Court may determine separateness under Almendarez‑Torres framework; no plain error |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (any fact other than a prior conviction that increases penalty above statutory maximum must be found by a jury)
- Almendarez‑Torres v. United States, 523 U.S. 224 (1998) (prior conviction is an exception and may be found by judge at sentencing)
- Alleyne v. United States, 570 U.S. 99 (2013) (facts that increase mandatory minimum must be submitted to jury; court declined to disturb Almendarez‑Torres)
- United States v. Anglin, 284 F.3d 407 (2d Cir. 2002) (fact of prior § 924(c) conviction is a sentencing factor judge may find)
- Deal v. United States, 508 U.S. 129 (1993) (second-or-subsequent § 924(c) convictions can be charged in same indictment)
- United States v. Wallace, 447 F.3d 184 (2d Cir. 2006) (multiplicity and continuous-possession analysis for § 924(c))
- United States v. Lindsay, 985 F.2d 666 (2d Cir. 1993) (multiplicity when multiple firearms are linked to a single crime)