United States v. Jack Voris, 964 F.3d 864

Background:

Voris, a convicted felon, fired one shot out the motel room back window at Officer Garcia and then fired four shots toward the front door where five U.S. Marshals (a five-person "stack" plus others nearby) were positioned.
No officers were hit; Voris surrendered after negotiations and later admitted shooting at the marshals.
Grand jury charged him with nine counts of assault on a federal officer (18 U.S.C. § 111), nine counts of discharging a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)), and one count of being a prohibited possessor (18 U.S.C. §§ 922(g), 924(a)(2)).
Jury convicted Voris of six § 111 counts, six § 924(c) counts, and one § 922(g) count; district court sentenced him to 1,750 months (approx. 146 years), including multiple consecutive § 924(c) terms (one 10-year and five 25-year consecutive terms).
On appeal Voris argued (1) multiplicity of five assault convictions based on the four front-door shots, (2) multiplicity of five § 924(c) convictions tied to those assaults, (3) entitlement to resentencing under § 403 of the First Step Act, and (4) district court abused discretion in denying mistrial/new trial after an officer mentioned Voris’s "criminal history."

Issues:

Issue	Voris’s Argument	Government’s Argument	Held
Whether five § 111 assault convictions (based on four front-door shots) are multiplicitous	The four shots were one continuous act or otherwise do not support five distinct assault convictions; Ladner limits convictions to one per shot	§ 111 convictions may be based on separate assaultive acts; four shots can support four convictions	Reversed one § 111 conviction; four convictions stand (one multiplicitous conviction vacated)
Whether five § 924(c) convictions (predicated on the five assaults) are multiplicitous	§ 924(c) requires a separate firearm "use" for each conviction, so the server should be limited where firearm was used once	§ 924(c) applies to each discharge/use; separate predicate offenses can support separate § 924(c) counts	Reversed one § 924(c) conviction (vacated along with the vacated § 111); remaining § 924(c) convictions affirmed
Whether Voris is entitled to resentencing under First Step Act § 403	§ 403 should apply because his convictions/sentencing were pending on appeal when the Act enacted	§ 403(b) applies only where a sentence has not yet been "imposed" as of enactment; Voris was already sentenced	Held § 403 does not apply; statute applies only if sentence had not been imposed at enactment, so no resentencing
Whether district court abused discretion by denying mistrial/new trial after officer’s reference to Voris’s "criminal history"	The remark was prejudicial character evidence requiring mistrial or new trial	Remark was brief/vague, jurors already knew Voris was a felon, government mitigated prejudice, evidence against Voris was strong	No abuse of discretion; motions denied properly (prejudice minimal)

Key Cases Cited

Ladner v. United States, 358 U.S. 169 (1958) (one gunshot supports only one assault under predecessor to § 111; rule of lenity)
United States v. Chilaca, 909 F.3d 289 (9th Cir. 2018) (multiplicity remedy is vacatur of multiplicitous convictions and resentencing)
United States v. Andrews, 75 F.3d 552 (9th Cir. 1996) (multiple § 924(c) convictions allowed when supported by distinct, properly charged predicate offenses)
Bailey v. United States, 516 U.S. 137 (1995) (firing a firearm constitutes "use")
Deal v. United States, 508 U.S. 129 (1993) (application of mandatory consecutive 25-year enhancement to "second or subsequent" § 924(c) convictions)
United States v. Monks, 774 F.2d 945 (9th Cir. 1985) (denial of mistrial affirmed where prejudice from improper testimony was minimal)
United States v. Smith, 924 F.2d 889 (9th Cir. 1991) (each § 924(c) count must be supported by a separate predicate offense)