United States v. Thomas Cureton
2014 U.S. App. LEXIS 654
| 7th Cir. | 2014Background
- Thomas Cureton was tried jointly on drug-trafficking counts (three convictions for crack sales and one acquittal on another) and offenses arising from June 14, 2010: attempted extortion, interstate communication of a ransom request, and two § 924(c)(1) counts for using a firearm in furtherance of crimes of violence.
- Facts supporting the violent-offense charges: Cureton allegedly robbed drug customers on June 12, 2010, then on June 14 kidnapped and assaulted his roommate Ashley Lawrence, threatened her with a gun, forced her to call relatives to obtain money, and obtained a partial wire transfer before arrest.
- The district court admitted evidence of the uncharged June 12 robbery over a Rule 404(b) objection, reasoning it bore on motive for recovering/storing $9,000 and was relevant background to the ransom/extortion story.
- A jury convicted Cureton on eight counts, and the district court imposed a total sentence of 744 months: concurrent long terms for drug counts, plus consecutive § 924(c) sentences of 84 months and 300 months (the latter as a "second or subsequent" § 924(c) conviction).
- On appeal Cureton challenged (1) admission of the June 12 uncharged-robbery evidence and (2) the imposition of two § 924(c) convictions based on a single use of a firearm during simultaneously committed predicate offenses; he also raised an Alleyne claim about a brandishing-based mandatory minimum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of uncharged June 12 robbery under Rule 404(b) | Gov: evidence relevant to motive and necessary background to explain why Lawrence carried $9,000 and why Cureton sought to recover it | Cureton: evidence was propensity evidence (violent/drug-dealer character) and unduly prejudicial | Even if admission erred, error was harmless given overwhelming, unchallenged evidence on extortion/ransom and strong independent proof on drug counts; convictions stand |
| Multiple § 924(c) convictions for single gun use during simultaneous predicate offenses | Gov: distinct predicate offenses (interstate ransom communication and attempted extortion) justify two § 924(c) convictions because elements differ | Cureton: single, undifferentiated use of one firearm supports only one § 924(c) conviction | Vacated one § 924(c) conviction; where a single use of one firearm occurs during simultaneous, indistinguishable predicate offenses, only one § 924(c) conviction is permitted |
| Remedy for multiplicitous § 924(c) conviction | Cureton: strike the second conviction and subtract the 25-year mandatory to calculate sentence | Gov: remand for resentencing | Court vacated sentence and remanded for resentencing, allowing district court to resentence the whole package rather than only excising the 25-year term |
| Alleyne/brandishing finding that increased mandatory minimum | Cureton: brandishing—used to increase mandatory minimum—was not charged to jury; Alleyne requires jury finding beyond reasonable doubt | Gov: evidence of brandishing was uncontroverted and jury could not rationally have convicted § 924(c) without finding brandishing | Court acknowledged Alleyne error but found no plain error (no miscarriage of justice) because Lawrence’s uncontroverted testimony established brandishing; holding as to plain-error relief denied |
Key Cases Cited
- Bell v. United States, 349 U.S. 81 (1955) (when statute is ambiguous about unit of prosecution, doubt resolved against multiplying offenses for a single transaction)
- United States v. Cappas, 29 F.3d 1187 (7th Cir. 1994) (multiple § 924(c) convictions require linking each gun to a separate predicate offense; did not decide single-gun/simultaneous-predicate issue)
- United States v. Paladino, 401 F.3d 471 (7th Cir. 2005) (separate armed offenses committed at different times can support multiple § 924(c) convictions)
- United States v. Bloch, 718 F.3d 638 (7th Cir. 2013) (simultaneous undifferentiated possession supports only one § 922(g) conviction; remand for resentencing after merging counts)
- United States v. Wilson, 160 F.3d 732 (D.C. Cir. 1998) (single firearm use that furthers multiple offenses supports only one § 924(c) conviction; statute targets choice to use a gun)
- United States v. Phipps, 319 F.3d 177 (5th Cir. 2003) (unit-of-prosecution analysis concluding single use of firearm during multiple predicates supports only one § 924(c) conviction)
- United States v. Finley, 245 F.3d 199 (2d Cir. 2001) (one § 924(c) conviction for single possession/use that relates to simultaneous predicate offenses)