United States v. Anthony Gonzales

339 1423, 129, 135, 129 affirming 556 U.S. 173 We conclude district (2009). court’s 360-month sentence would not re 266 “[W]e do view the L.Ed.2d in miscarriage justice. sult The district fourth prong' as automatic if the other reasoning sentencing court’s met.” United States v. prongs are three hearing suggests think a Escalante-Reyes, 415, 425 sentence the erroneous within Guidelines 2012) (en banc). reject This Court has range of 180 240 months was sufficient prejudice ed “a blanket rule that once Rather, in this case. the district court be plain found under prong], error [third lieved a sentence well 240 above months invariably requires the error correction.” just and reasonable based Wikker- Reyna, Id. United States v. (quoting ink’s history criminal the large num 344, 2004) (en banc)). of disturbing images ber and videos. The Instead, this discretion to Court’s correct district court also believed a 360-month the sentence employed “should be those necessary sentence :was to deter Wikker- miscarriage circumstances which a ink from engaging future criminal con would otherwise result.” justice (quot to protect public duct from further Olano, United States v. 725, by Thus, crimes Wikkerink. are 113 S.Ct. L.Ed.2d convinced that the district error in court’s (1993)). prong “The fourth is meant seriously fairness, to be case this affects in tegrity, applied public reputation on a case-specific judicial pro and fact-inten ceedings. Puckett, We decline our exercise dis sive basis.” U.S. at cretion correct error. S.Ct. 1423.

During sentencing hearing, Wikkerink’s CONCLUSION IV. court district stated that the offense above, For the reasons stated we AF- “quite troubling” explained, “I by FIRM the imposed sentence the dis- know, frankly, don’t the Guidelines trict court. captured correctly the nature and extent behavior this defendant’s collec-

tion of pornography.” child The district disturbing images described the found in

videos connection with Wikker- protocol ink’s America, internet address and found UNITED STATES Plaintiff-Appellee computer on a from seized his residence. (cid:127)

Moreover, the district court noted that previously Wikkerink had been convicted Anthony Ryan Stacey GONZALES; aggravated for molesting his sev- incest Castillo, Stacy Louise also known as en-year-old Accordingly, the niece. district Castillo; Raymond Louise Hernandez court concluded that the 360-month sen- Jr.; Olgin, Paredes, Rudolfo Romero just tence “awas reasonable sentence Defendants-Appellants history under the and .characteristics No. 15-50762 defendant, this the nature circum- and. Appeals, United States Court of offense, stances instant the need to Fifth Circuit. adequate afford future crimi- deterrence defendant, by nal as conduct well November protect public from need further crimes defendant.” an understand- them this case

asked to determine' whether able reason: findings guilt on firearm and of a committed the course offenses theory of on a di- conspiracy were based liability, abetting liability, aiding and rect liability under Pinkerton conspirator Jr., At- Gay, U.S. Joseph H. Assistant 640, 66 S.Ct. 328 U.S. Stelmach, Esq., torney, Randolph Mark (1946). propriety L.Ed. Attorney’s Attorney, U.S. Assistant questions, those to which neither asking Antonio, Office, TX, Plaintiff-Ap- San appeal. objected, is not at issue side pellee. to those answers The effect Stroder, of Allen Ray Law Offices Allen is. that once special questions conclude We Odessa, TX, Stroder, Ebaugh, Nelson R. asked, special questions to the answers Leach, TX, Houston, Evers Jason Esq., evaluating the when be considered must Leach, TX, Odessa, Office of E. Jason Law requires This sufficiency of the evidence. TX, Calhoun, Austin, for Lee Alexander in this vacating the convictions some of Defendants-Appellants. involving case a brutal murder committed trafficking operation by drug because WIENER, CLEMENT, and Before acquittal by for judge trial motions denied COSTA, Judges. Circuit theo- finding the defendants under adopt. ries did.not COSTA, Judge: Circuit GREGG common civil Special questions,

trials, in crimi I. long been disfavored to dates back nal That aversion law. 13, 2014, found May Sean Lamb was On law, consid common pre-Founding passenger front in the seat his dead questions to be an special intrusion ered Odessa, Texas. Lamb Expedition Ford up/ give jury’s prerogative to from his ten times behind had been shot guilt explanation. no vote with down range gun firing nine- seat at close with Desmond, States v. 670 F.2d millimeter ammunition. (3d 1982). this strong So early century com that an view twentieth to investigation An linked Lamb’s death it as “one of the most mentator described drug operation Ruben Hernandez. by right trial essential features cocaine, methamphetamine, Ruben sold to compelled should be jury that no sister, marijuana. Liz Her- Ruben’s and verdict criminal find nandez, drugs his at her often stored cases, and removal safeguard May of Liz also apartment. In design destroy its its violate and would them. helpiñg distribute Ruben Speoial spirit.” G. Clemenston, VeRdicts by Findings (1905), Special Juries and May or went On about Ruben Spook, quoted in United States bag of gallon-sized apartment Liz’s (1st 165, 181 nine of metham- what he said was ounces - typically than he phetamine—more grown more com- As criminal law has Johnny Miguel, brought to her home. San however, jury ques- plex, use Saenz, Sean Lamb had recent- court Steven The district and tions has increased. Liz,1 ly begun living with and Ruben asked and Castillo respond instructed Brian to help men Liz to him the three and sell the arrange meeting. Lamb’s text and Lamb drugs, gave meth. agreed Ruben divided each to meet and went with two friends sell, and, portion of them.a unbe- small alley Brian meeting identified as the Liz, knownst left ounces of the about six spot. purse.

meth in her As alley, Lamb waited Brian in the When apart- Ruben Liz’s returned Ruben, Liz, and the others entered sud- morning looking ment next denly positioned their vehicles so that drugs purse, he left in her he Liz had Lamb escape. could not allowing After Lamb, Saenz, Miguel, realized that San passengers exit, Liz, Lamb’s Ruben, two purse, stolen the drugs had from Liz’s Galan, and Gonzales jumped into Lamb’s truck, taken her disappeared. Ruben Expedition, pushed him into passenger Liz they drugs told to find the needed seat, began beating him and demand- drag his might bosses their find mother ing to drags know where Saenz and the and harm Mexico her. After their efforts were. failed, drags to recover the Liz enlisted Screaming mercy, told Lamb his as- Castillo, help Stacey Louise Castillo. sailants that Parkway Saenz was at the “regulator”

who considered herself a help Inn he and would them him. find The to people, sorts and was often hired find (in alley left group took and Lamb his agreed to locate the three men recover and Inn, to Expedition) Parkway but Saenz drugs. stolen they began beating was there. When Liz, Ruben, Castillo, May On Antho- again, Lamb them he told Saenz could be Gonzales, Paredes, ny Ray Olgin, Rudy at a friend’s house. On way their to this Liz’s to apartment and Noe Galan met at location, Gonzales, Castillo, next Liz and how to discuss find the stolen meth. Liz’s wrong separated took a turn and were son, Hernández, Brian there as well. was from of Liz group. the rest testified brought camouflaged Gonzales MAC-102 phone that Castillo later call received a meeting; brought pink Castillo and telling her that Galan had killed Lamb. gray .38 caliber revolver. Castillo told the Ballistics indicated that the shots were group she believed Lamb and Saenz were directly from pas- behind the front fired “hurry they up informants and needed to seat, which, Liz, senger according get and find them and rid them.”3 Galan was seated. where group meeting, While the Brian re- was II. Lamb, messages ceived several text from he, apologizing Miguel, government strayed and has from what San never if asking get position had done he Saenz and could Galan shooter. was the sought eight his apartment. clothes from Ruben all Liz’s But. it those hold Miguel drugs purse boyfriend's brother. stole from San was Liz’s Saenz Liz's but Miguel’s was Lamb was Saenz San cousin. tell him and Lamb about until after didn’t friend. Saenz’s they grandmother’s house reached Saenz's in Miguel Levelland. San said he and Lamb tried Military Corporation 2. The Armament Model apartment to drive back Liz's in Odessa compact, blowback-operated 10 is a machine morning, they gas next ran out of on the pistol, eventually parted ways. road and side Miguel Lamb, Saenz, San Liz and told her Saenz was point, Miguel called 3. At this and San drugs. separated. who stole the Miguel had testified that the one San object to Lamb—Liz, government did not charge). The Bri- hunting down involved Castillo, Galan, Paredes, Ruben, an, Olgin, The court asked request. murder, for the Gonzales—responsible and was to ensure questions conspirator aiding abetting and using and theory unanimous charged liability. grand jury A theories alleged.5 theories multiple light (1) possess conspiracy to all them with: interrogatories related to first two a controlled sub- intent distribute charge. Jury carry” firearm the “use and §§ of 21 U.S.C. stance violation each defendant Question asked whether (2) 841(a)(1); carry” of a “use and carry” firearm guilty “use drug in relation to a during and firearm theory personal on a liabil- charge based trafficking offense violation 18 U.S.C. (3) 924(c)(1)(A); resulting liability, aiding ity, conspirator’s a firearm and in use of Olgin from the found and Gon- abetting. The trafficking offense relation theory conspirator’s guilty zales under § 924(j). The of 18 U.S.C. two violation and Castillo liability, but found Paredes aiding and abet- counts asserted firearm theory personal liability. under § 2 18 U.S.C. and con- ting liability under whether the firearm Jury Question asked under Pinkerton v. Unit- spirator liability neither; brandished, discharged, or 66 S.Ct. ed 328 U.S. defendants, of the four each (1946).4 L.Ed. 1489 marked “brandished.” day escaped to Mexico after Ruben con- interrogatories The second two murder; remain at Lamb’s he Galan charge. Similar to the cerned the murder guilty pleas large. Liz and Brian entered Jury Question asked interrogatory, first government. left That and testified which of the three determine Paredes, Castillo, Olgin, and Gonzales as liability guilty supported theories of jury the trial. The found at defendants charge. on the murder The verdict on all counts. guilty them Castillo, Paredes, that and Gon- answered questions form more had The verdict on liabili- guilty personal zales were based in criminal trials. The typical than is de guilty was on ty, Olgin whereas based that the ask not requested fendants court Finally, the conspirator’s liability. question just general the verdict whether the defendants were was asked count, but guilty” or “not for each “guilty” murder, degree or second guilty first interrogatories related to special also guilty all four of first the found and (the of a carry” “use and Counts Two (the degree murder. and charge) firearm Three Pinkerton, Supreme used. See Fifth In the Court held that court Jury Circuit Pattern (2015). criminally conspirators liable for substan- 1.25 But the are (Criminal) Instruction conspirators by other tive crimes committed argued special questions that the defendants conspiracy, the the in furtherance of unless unanimity given to ensure were also needed scope of the crime “did not fall within the in- and theories the number of defendants project, merely part of the or was unlawful seen, particular, be the volved. In as will plan which could not be ramifications that Pinkerton defendants contended necessary or natural reasonably as foreseen spe- first-degree A apply murder. does agreement.” 328 consequence of the unlawful indicating jury question cial whether a 647-48, 66 S.Ct. 1180. theory reached on a Pinkerton verdict was appeal issue for and would have isolated that jury charge emphasizing pattern 5. There is a prevent need for a retrial. the unanimity requirement district that the the Paredes, Castillo, roles, recap To Gonzales moved their Gonzales and and Castillo counts, acquittal group help on all judgment but recruited Liz and Ruben on They drugs. Counts Two and the stolen Gonzales focused Three. recover and (and of) argued sup- brought disposed that there was no evidence to Castillo later port jury’s finding “personal handgun MAC-10 and that liabili- were used dur- Lamb, on the hunt for ty” they these counts. The district court also participated that acknowledged the evidence showed his assault. But neither Galan, than- any present that -rather the four them was Lamb when was mur- n defendants, Lamb, Paredes, hand, shot on the other nonetheless dered. killed, that to Jury found the car when answers Lamb was but there is no Questions 1 3—-whichin some instanc- evidence he was shooter. inconsistent es were with the evidence— sufficiency challenge A ordinarily interrogatories not control because prompts us to recite the standard re “unnecessary inconsequential.” were requiring uphold view the verdict thus denied the defendants’ mo- long so as viewing “after evidence ground tions on the evi- “there was the light prosecution, most to the favorable support dence convictions of all any rational of fact trier could have found Pinkerton/conspir- under the [defendants beyond the essential elements of the crime liability theory” ator even when Virginia, a reasonable doubt.” Jackson v. theory agreed indicated it 307, 319, 443 U.S. questions. on in special its answers (1979). L.Ed.2d 560 That remains the ulti The four defendants received same issue, legal question mate but a predicate twenty years consecutive sentences: determine whether the will will verdicts convictions are not chal- survive that deferential review. lenged appeal; years seven for the “use sufficiency question whether the convictions; carry” firearm life for light review must be conducted They appeal. murder convictions. all jury provided answers whether, held, district court those III. disregarded be re answers can and the first challenges We consider the mur- just verdict view based der convictions. guilty. theory upon the jury If the special its verdict in the based answers— A. or for personal liability direct the murder Castillo, Gonzales, or Pink aiding abetting Paredes opposed ar to and effect, erton gue liability—must given that there insufficient to then be evidence support they the com government verdict concedes there is no the evi in using support mitted murder connection with a to dence the convictions as Galan If, hand, drug during trafficking firearm on offense. was the shooter.6 the other Indeed, vacuum, government halfheartedly argues "personal 6. The viewed in liabili- finding “personal being liability” ty” simply the mean that one is held could be could finding liability. individually responsible It for her read as of Pinkerton actions. correctly possible special question observes that be to to held liable under three answers the Pinkerton, must, however, conspirator requisite have a on be read in must murder context. culpability” "personal liability,” amount of "individual in the choices are the When that, among things; abetting liability, aiding sense other there lia- Pinkerton had join liability conspiracy. bility, personal be an act to the cannot be the individual same as 346 case in which the example is a recent considered, then general the verdict is

only the defendant’s long Circuit so as Fourth vacated the convictions affirm would we prohibited one of a supporting possession least conviction there is evidence States v. See United liability. theory inmate because object by a federal the (5th Garza-Robles, 161, 166 Cir. 627 F.3d questions— factual only asked was States, United v. 2010) (citing weapon and did defen- an exhibit a Griffin 46, 59-60, 112 116 L.Ed.2d object—and never asked possess dant (1991)7). further discussed below As guilt. give up/down verdict sentence, considering Olgin’s ev- when Ramirez-Castillo, v. States F.3d Pinkerton liability support exists idence (4th Jury interrogatories, Cir. as the murder was all the defendants hand, general supplement other in act furtherance foreseeable committed supra n.l. That is the verdict. LaFave, drug trafficking conspiracy. appropriate term what district To answers determine whether As seen in this case. will be did given interrogatories must below, however, of the case uses much law effect, historic consider their role we must even when talk- “special verdict” term mentioned at outset. in criminal law interrogatories like these. about first, inter terminology. “Special some But interrog- “[sjpecial respect Even with verdicts,” “special rogatories,” “special atories,” repeated the refrain interchange- findings” are sometimes used in not be criminal-tri- they “should used Wayne al., 6 Crim. See ábly. R. LaFave, et Bosch, v. United States F.2d als.” 24.10(a) (4th 2015). A true n.l ed. Proc. James, (5th 1974); United States make “special verdict” asks 1970) (“We do findings in of a factual the absence specific not minimize the seriousness the error verdict, judge and leaves special interrog- court submits inno a trial guilt or when the defendant’s determine case.”). An in a criminal findings. atories to the light of those cence ond is was a member of defendant the Pinkerton select. Harris, 467, 477 conspiracy One while some oth- United States v. Count Cf. (explaining jury's an- that a or carried a knowingly er used co-conspirator spe- "manslaughter” response ato swer of during conspir- in relation to that firearm rejected] interrogatory ‘‘[njecessarily ... Lamb, cial acy in the of Sean that resulted death in either the the alternate choice murder of or as which committed furtherance jury’s finding degree”). The or second first conspiracy. consequence of the a foreseeable personally committed the that a defendant The third is that the defendant aided finding necessarily excluded a conspirator who used or carried abetted liability, applies only when Pinkerton firearm and in relation to conspirator[s] committed [other] "another trafficking One in Count that resulted crime offense. the” substantive Fifth Circuit Pattern Lamb, in the of Sean whether or not death (2015) § 2.17 (Criminal) Jury Instructions conspira- was a member defendant added). (emphasis cy Count One.” gave re- district court The instruction the significance any of moves doubt about the any- of explains “in the absence 7. that Griffin liability.” jury’s “personal of It de- selection contrary,-the thing in record to show jury could select theories the scribed three presumption of law is that the court awarded is "The first is that the defendant as follows: good only.” on the count 502 U.S. sentence knowingly personally and personally liable for 50, (quoting 112 466 United Claassen v. S.Ct. using carrying in or a firearm 140, -146, 169, 35 12 S.Ct. 142 U.S-. alleged commis- relation the defendant's to (1891)). L.Ed. 966 charged of crime in Count One that sion of Lamb. The sec- in the death Sean resulted

347 Bosch, ty. a 505 F.2d at hostility judge that stems from desire 79. The thus of Much nullification, jury to jury undermine de instructed the answer an “[d]id ability agent by Holmes as the Justice of United States Government scribed bring promise a in teeth of that jury [ “to in the defendant ] a .she would verdict Horning prosecuted charged District for the facts.” v. not be offense both law of .., Columbia, 135, 138, 53, 254 80. He 41 S.Ct. ?” Id. at further that U.S. instructed (1920), abrogated jury 185 on other if the answered no to special 65 that L.Ed. Gaudin, you 515 by question, grounds. United States v. “then should find the defen- 506, 520, guilty.” 115 132 L.Ed.2d dant at 81. We vacated the conviction, (1995).Although power resulting noting a “any controversial en- encourage, upon right do not croachment to a purportedly that courts broad (cid:127) power explains why jury’s general of verdict of guilty “the or lenity fraught special danger.” of with interrogatories, the. use Id. at 78- reasons,’ jury toas its might ‘catechize judicial met with a

has lack of enthu been ques- This to special historic aversion Desmond, (quoting F.2d at 417 siasm.” in years, has recent tions lessened at least Morgan, M. A History Edmund Brief interrogatories accompa- that are not Special Special Interrogato Verdicts by directing finding nied instruction (1923)). ries, 575, 592 A 32 YALE L.J. on the answer guilt based as was general requiring only an answer verdict Bosch. The same circuit that decid- one guilty” permits jury “not “guilty” or case, Spock recognized which is ed the on reach its more external decision “based authority against spe- “leading the use of the strict circumstances than letter on potential cial verdicts based their A Id. at 418. classic law.” verdict special jury to leading prosecution’s de- facts, jury then that asks decide conclusion,” has since sired held that corresponding to a directs the either at issue in U.S.C. statute case—18 finding general on the or results in verdict special interrogato- one which 924—is entering finding, impairs judge may particularly appropriate ries be be- Special verdicts prerogative. “proscribes type cause it more than one long thus been as inconsistent have viewed conduct, penalties vary depend- with principle only that “not must the ing upon the acts committed.” United free from control its be direct Cir, Melvin, (1st States v. F.3d verdict, judicial it free from must be complexity increased of federal pressure.” Spock, 416 at 181.8 F.2d one criminal law that section reflects is greater acceptance spe- judicial for the improper found that such reason We v. special question interrogatories, See United States pressure resulted from a cial Reed, drug prosecu- The trial in Bosch. in that spe- (citing claim that numerous cases which

tion focused defendant’s agent upheld); been promised questions her immuni- cial a federal had Moreover, abridgement or explained: modification 8. Another partly its of this institution would restrict might questions To ask function, tempering rules historic infringe power to deliberate its said upon brought sense to bear by law common legal fetters; power on its ar- free from n specific case. the facts having verdict without rive at F.Supp. Ogull, 149 report United States by by support or its reasons 1957), (S.D.N.Y. deliberations; quoted Spock, F.2d at power and on its follow the instructions of the court. not follow (2d jury’s of answers The issue here. effect Ogando, F.2d v. States Although may the law 1992) them is. “preference a (expressing concerning proper give com- it is particularly murky when interrogatories special cases”). used it is They interrogatories, have been jury special criminal plex (1) charged a government has of those inter- when the comes to the effect when it conjunctive in the a crime consis- defendant once answered. Courts rogatories proof in the satisfy its of may burden tently convictions when the answers vacate (2) the de- raises disjunctive; defendant interrogatories special undermine (3) insanity; jury’s of determina- fense gen- jury made on the finding guilt of (4) sentencing; and facts will affect tion of 24:10(a) § supra question. eral LaFave, forfei- the criminal government seeks (“A finding may also special verdict jury’s from a defendant.9 property ture Rob- an element of offense negate an essential Navigating LARSEN, ERTE. the Federal general ver- jury of which returned (2016 ed.). § And one 2:48 Trial the situation where verdict Unlike dict. frequently most offered “justifications is with a verdict on one count inconsistent motivated the is the one that their use” count, negat- finding a special on another ensuring unanimity case: questions single count will be ing an element of a guilt. multiple are theories there when count, not as of that acquittal treated as “Guilty” or “Not Beyond Nepveu, Kate H. verdict.”). At the federal an inconsistent in Crimi- Special Guilty”: Giving Verdicts level, has arisen in cases this issue Pol’y Trials, 21 Yale L. & Jury nal Rev. jury found the defendant when the has (2003) (noting special inter- “none” in re- then answered guilty but ensure that rogatories in this context “can special interrogatory about the sponse to a get lost [unanimity] issue did (a drugs in the offense quantity of involved may ... during [and] deliberations shuffle drug quan- that is asked because question economy by confirm- judicial contribute minimum or maxi- tity can determine avoiding unanimity and thus ing sentence). guilt Despite finding mum retrial”). gen- Although defendants question, general drug trafficking given the special verdicts erally opposed judgment acquit- required courts have above, a stated Amendment concerns Sixth of the “none” to the light answer tal unanimity requiring special interrogatory v. question. States drug quantity usually is theory of as to the conviction F.3d Randolph, 794 it was here. sought by the defense as 2015); Shippley, United States cf. (describ- 1192, 1193 interrogatories, propriety those trial in which found defendant agreed, government to which the murder, second-degree mur- they first-degree were 9. A case we considered in der, involuntary voluntary manslaughter, A convicted used is 420 F.3d 467. Harris. (1) carjacking, in violation of the defendant manslaughter. 476. The instruc- Id. at (2) § firearm use of a 18 U.S.C. required explained that murder malice tions violence, in violation of 18 a crime of killings accompa- aforethought and included 924(c) Finding (j). that the U.S.C. Voluntary man- by intent to kill.” Id. nied "an carry government its burden failed that, slaughter This court stated did not. Id. showing intent to kill or a nexus between the selecting voluntary manslaughter, "the by car, taking we reversed harm finding instead jury rejected a of murder” and convictions, jury's special noting killing did not occur determined "that supported at 475. verdict our conclusion. Id. robbery or have the during the course of a verdict form asked Id. at 476-77. element of malice.” defendant indicate whether it found the See United States v. drug conspiracy of but ation we guilty facing. answered are (2d Frampton, 2004). prompting trial quantity, “none” 382 F.3d 213 deliberations). In judge charged to ask for further The indictment the on defendant arena, have not princi- the fraud courts convicted alternative he either theories: was general in despite defendants verdicts of who used a firearm connection pal jury guilty when the answered “no” to a crime of or violence he aided and abetted special questions asking jury whether the another defendant’s commission of that Id, unanimously agreed jury had the A false crime. at 224. found the defen- material, United States v. dant response general statement was in to the ver- Mitchell, dict, acquitted but district court him the 2007)10,or the jury’s whether defendant had the of the special because answer defraud, United States v. specific question intent to that he principal, theory was a Lucarelli, (D. F.Supp.2d guilt on the court which found evi- the 2007). Conn. dence insufficient. The Second Circuit af- firmed, that, recognizing ordinarily, prece- slightly The issue in this case is differ- dent dictate consider whether would special interrogatory ent. The ask- government’s evidence was sufficient offense, ing about element but support general verdict under either theory liability. holding Yet the theories; charged of the the answer to the special interrogatory these cases—that the however, special question, limited suffi- given negate must can be effect and ciency review to theory.11 chosen guilty—decides verdict of fun- Id. in question damental this case. We cannot ignore interrogatory special only answer of support- case came across “personal liability” pretend the district court’s special view that a the Pink- finding guilt its on is interrogatory ignored based can be Bran, erton States theory for which the 776 F.3d 276 Bran’s discussion check the box. The Second Circuit reached the issue is dicta, however, this conclusion considering when the role because the evidence in special interrogatories support the same situ- sufficient on the verdict based Mitchell, granted given interrogatories. In 10. the district court were two Id. *3. The light Rule 33 for new trial motion of the first asked whether the defendant traveled in showing interrogatory answer to the interstate commerce with intent to com- unanimously had not found the mate- bribery; mit commercial the second asked if riality question elément. 476 F.3d at 543. The defendant aided abetted another appeal jeopardy on was whether had at- traveling in in- interstate commerce with the Eighth tached. The Circuit held it had not in bribery. tent to commit commercial Id. The light wording special interrogato- guilty” found the defendant "not of trav- ry may response have meant the “no” commerce, eling "guilty” in interstate just jurors indicated that "some found the aiding abetting. Although the evidence Id. jurors statements material and some found established the defendant traveled in in- the statements immaterial.” Id. at 545. That question, date in terstate commerce would akin to mistrial which retrial is person other there was no evidence that recognized permitted. The court that if the whom the traveled interstate commerce jury unanimously answer meant "the found Recognizing Id. defendant could aided. immaterial,” jeopardy the statements then support theory evidence did not have attached. would con- on which the defendant was victed, district court United States v. acquitted district defen- Werme, (E.D. May 1990 WL 74267 Penn. dant. Id. 1990), similar reached a result. Jurors there 350 States, 1, 16, to Burks v. United response in theory jury the selected

the (1978)). per- The 57 L.Ed.2d id. at 280. S.Ct. See interrogatory. the theory govern- for the liability sonal argues the government that Su no evidence as ment concedes there was in Musac decision preme Court’s recent Castillo, Gonzales, Paredes should — U.S.-, v. United chio option as been never have submitted (2016), 709, 193 supports L.Ed.2d on the based the jury the and thus verdict interrogatory disregarding the aside. unsupported be set theory must in sufficiency of the reviewing evidence the not even pres- Castillo and Gonzales were Pinkerton Musacchio theory. of light a although Lamb shot. And ent when was a district court instructs held that when Pa- concluded that jury the have .could by including element jury the an additional Lamb’s at the time of was in vehicle redes actually require, not the does that statute evi- shooting, testimony and forensic the govern not the instruction does erroneous the shots were fired dence indicate that on Id. sufficiency appeal. at 716. the review sitting vehi- from where Galan was holding, Supreme explaining In that Conspirators Liz Brian also cle. testi- “reviewing a lim stated that court’s Court understanding, it based that their fied was sufficiency on review ited determination murder, night on conversations the jury not on thus does rest how the shooter. that Galan was jury guilt finds after instructed. When on convictions based on all being elements instructed findings liability jury’s personal thus element, plus crime one more charged uphold Nor can the mur cannot stand. findings all the that due jury has made might convictions there be der because This, Id. govern process requires.” a Pinkerton support sufficient evidence says, general means that the verdict ment Harris, See theory jury rejected. that guilty of the mur finding defendants jury’s that (explaining 420 F.3d at 477 jury affirmed because be der should multiple theories one of selection s on instructed all the element and special question rejec is a response guilty its found the defendants Indeed, options). our tion of the other jury But Musacchio says only that verdict. can longstanding verdict rule erroneously require a instructions under Pinkerton upheld only be when the additional, extraneous find jury to make theory jury is on that instructed conducting a ings ignored can be when that, recognizes jury such verdict review; quite sensibly it does sufficiency possible it must that the upheld, be be findings can say not actual Pinkerton finding .in actually relied ignored. See id. n.2. Musacchio be Morrison, guilt. United States to be question of the effect hot involve (rejecting 503 n.2 not given special verdicts and should Pinkerton as affirming convic basis giving the case those read undo law given tions instruction was because findings legal force. Polk, States v. (citing special interrogatories, 1995))), Applying This makes sense. n.4 finding Musacchio Pinkerton actually supports liability, must To find explains necessary finding It the suf- insufficiency findings here. to a make example, that “essentially liability, for ficiency personal review addresses by an committed government’s ‘the case was so substantive offense was whether furtherance lacking conspirator that it should been even other ” consequence conspira- jury.’ (quoting a foreseeable submitted Jury See cy. tax counts for the substantive less involved Fifth Circuit Pattern In- n (2015). brother, Supreme A Court con- held 2.17 (Criminal) struction spirators criminally are liable judge findings to con- for substan- cannot make those by tive crimes committed their fellow con- vict a when a not. defendant has spirators conspiracy, furtherance The Sixth Amendment concern unless the crime fall “did not within the invading purview courts’ with the jury’s scope of the project, or unlawful was mere- traditionally against that has the counseled ly part a the plan of ramifications the in asking special questions criminal reasonably not be could foreseen as if greater cases would face an even affront necessary consequence of the natural a court replace were answer agreement.” Id. 647-48, 66 unlawful interrogatories its of how with view Although S.Ct. 1180. still a controversial should,have the case been decided. holding the broader of criminal in world right “includes, course, by jury trial law,12 system in the federal Pinkerton has element, important its right as most the long powerful prosecutors. been tool for jury, judge, the the reach rather than It applied to be in continues the fraud ” 'guilty.’ the Sullivan requisite finding gave it, context that rise to most its. Louisiana, 275, 277, v. 508 U.S. 113 S.Ct. application common in likely is traf- 2078, (1993) (citing Sparf 124 conspiracies L.Ed.2d 182 ficking like the one 105-06, v. United 51, 15 case. 273, (1895)). 39 L.Ed. 343 But the offense that oc- substantive during conspir-

curred of this course acy—murder—is not often seen B. Pinkerton system. liability Does federal a Pinkerton rely on no, arguing Olgin attach to In murder? theory finding Olgin guilty of first-de Cherry, relies on v. States gree Recall that once was murder. Lamb 811, (10th 2000). Cherry F.3d trapped alley, his assailants shoved “first-degree mur- reasoned because him into passenger the front seat of his liability incorporates specific der intent beating Olgin got him. Expedition before requirement far more stringent than into the the group driver’s seat and drove the Pinkerton doc- foreseeability,” mere around as for they Saenz searched co-conspirators trine not “hold lia- should drugs. driving Expedi stolen He was first-degree ble for murder that was tion by when Lamb shot Galan. object original conspiracy.” Olgin challenge thus raises a different said, so, at 818. To do “would first-degree conviction, his arguing apparently every minor drug render dis- reach Pinkerton cannot a sub- co-conspirator, regardless tribution requires height- stantive crime conspiracy, the extent of the knowledge, ened mens rea aforethought violence, factors, malice history its and like Pinkerton premeditation. a prosecu- murder,” first-degree liable a result for tion of bootlegging conspiring for incompatible brothers “appears due process violate the 328 U.S. inherent Pinker- revenue laws. limitations ton.” Id. 66 S.Ct. upholding 1180. In convictions " Many greater liability, academy’s required view of the state courts have erton showing “overwhelmingly negative.” See conspirators to be held liable for decision Pauley, offenses committed Matthew A. The Pinkerton Doctrine substantive Murder, (2005), rejects conspiracy, Code Pierce L. Penal Pink- Model Rev. com- of murder the offense instruction Circuit has as even Tenth

Yet crim- continuing recognized, holding a defen in furtherance recently mitted more co-conspirator’s for a responsible though dant defendants did enterprise inal violate due murder—does acts—even general applicability challenge Pinkerton’s within those acts process when “were murder); Thompson, United States conspiracy and thus necessari scope of the (explain- members of the to the other ly foreseeable Pinkerton’s reasonable foresee- ing that Rosalez, States v. conspiracy.” United captures specific ability requirement The de first-degree mur- requirement intent plan assault helped in Rosalez fendant der). inmate, Zuniga-Garcia. Id. Pablo fellow as foresee- Lamb’s murder was at least Zuniga died as result at 1199. so) conspirators to (probably more the assault, able men were and the involved crimes, to includ in this case than were the murders the charged with a number 1200-01. second-degree murder. Id. at Alvarez. conspirators Rosalez and Mem- Rosalez, partici planned but did who drug trafficking organization bers of the beating, argued subjecting that pate in the to weapons, determined were armed with liability pro violated due him to Pinkerton of the con- drugs, and fearful retrieve origi murder was cess because the they if failed. sequences they might suffer object conspiracy—they were nal cornered, alley, into an They lured Lamb Zuniga. Id. at 1206- supposed to beat only beat, him. And when his kidnapped and holding Cherry, its earlier Despite information on whereabouts Saenz’s holding concluded that Tenth Circuit unfruitful, group proved members co-conspirators’ for his responsible Rosalez upset. It was reason- increasingly became Id. at process. not violate due acts did might use ably foreseeable that someone that, given the court reasoned 1207. The Lamb or weapons one of the make involved, weapons of attackers and number drugs. As the turn over the stolen Saenz reasonably Zuniga that it was foreseeable observed, of a death “[t]he Second Circuit assault; therefore, the might die from the consequence of a rob- victim is a natural sep not an act that occurred murder “was on the use of over- bery premised which is assault, but rather was a arately from the violent, con- mastering armed force and foreseeable, direct, entirely result of and Parkes, v. frontation.” United States out on him.” Id. vicious assault carried (2d 2007); see also Alva- F.3d similarly. has ruled The Eleventh Circuit that, rez, (finding at based 848-49 Alvarez, States v. See United in- drugs money on the amount 1985) that, (finding be volved, that the con- jury could infer knowledge had actual cause the defendants at least some spirators would know that the circumstances and least some of carrying weapons conspirators would be murder and leading up events were if deadly be used neces- force would deadly might that use force aware Alvarez interests). conspirators’ sary protect rela going prison, back to “the avoid everyone that who If doubt remains and the tionship between the [defendants] searching drugs night went so attenuated as run was not is possible, there knew that a murder process limita potential afoul of the due evening comment Castillo’s earlier doctrine”); see also tions on the Pinkerton informants that Lamb and Saenz were Britt, Fed.Appx. “get of.” We affirm they had to rid (affirming a Pinkerton whom “personal on Olgin’s liability,” “conspirator’s murder conviction based on Pinkerton liability. liability,” “aiding abetting”? or based Paredes,

For Castillo and the two defen- challenge sufficiency who IV. dants count, for this the jury evidence found for using turn now the convictions We carry” response them “use carrying committing while firearm Then, to the in response verdict. U.S.C, 924(c). drug trafficking crime. 18 special interrogatories, it stated challenges. in- again address One We two. personal their on guilt based question about the effect of the volves that each a firearm.13 Fol- brandished interrogatories. The other is a dou- special lowing reasoning up- the same it used jeopardy argument. ble convictions, holding the murder the district upheld brandishing convictions A. on its based belief that could do so under a Pinkerton theory though even court used interroga The district base its verdict on such. For the 924(c) tories for the section count because discussed, already once a reasons have graduated penalties offense asked, special interrogatory is provides depending weapon how the legal force. answers We can thus Doing light used. so made sense in sufficiency the of the to consider evidence — -, Alleyne v. United support brandishing theory light in only (2013), 133 S.Ct. 186 L.Ed.2d 314 personal liability theory on which enhancing which held that the a mini facts jury the its based verdict. mum that sentence under statute are ele jury ments of the offense for a to decide supports The evidence the verdict sentencing judge rather than can factors personally that Paredes brandished fire decide. Id. Using carrying or the To arm. “brandish” a firearm means “to in a year firearm, firearm results five minimum part all or display or the other 924(c)(1)(A)®. § sentence. presence U.S.C. make the of the firearm wise Brandishing firearm min in person, the elevates that to in order to known another .years. regardless imum to seven that person, 18 U.S.C. timidate wheth 924(c)(l)(A)(ii). § firearm Discharging directly in a er the is visible results 924(c)(4). § year minimum. person.” ten Two U.S.C. U.S.C. wit 924(c)(l)(A)(iii). facing alley the form in a the After verdict nesses who lived house jury initially asked the the defendants where Lamb assaulted testi whether was guilty using carrying Larry Hodge night were the fire fied. stated that drug trafficking, “screaming arm in it connection with the he heard in question hollering” alley thus in from the went to asked additional jury vestigate. the check a box for “brand He saw assault and consid could ished,” “discharged,” trying up,” them or “neither.” The ered “break special question changed form also asked another his he a man mind when saw holding in shirt coming akin to the one asked for murder: from left a red his 924(c) camouflaged for conviction “machine section what looked like a Olgin likely any conspirator do as committed the foreseeable 13. Gonzales and not raise suf- 924(c) ficiency challenges brandishing in to the conviction a firearm furtherance act Dean, "conspirator’s conspiracy. because the checked liabil- See States v. United them, 1995). (5th they ity” long for so would be so F.3d 1490 n.20 Cir. Baptiste, States v. wife, that See United Trudy, testified Larry’s gun.” (5th 2001), in other people one same man was this modified 2002). respects, from the Park- Cas F.3d assaulting Lamb. Videos gray took Inn, group purse pink place the first tillo carried her way meeting to the where abducting alley, him from after .38 caliber revolver Lamb wearing they arranged shirt. Paredes abduction. a red Lamb’s show Paredes wearing day testimony that Ruben was also points out There was also murder, that af- testimony suggests But Castillo and Gon shirt. after Lamb’s red alley, joined he in the arrived her revolver and ter Ruben zales to sell both tried interrogate Liz, Gonzales, and Galan kill Lamb. the MAC-10 was used Lamb his vehicle. So reasonably and beat inferred could have that the reasonably could have of her get concluded rid hand that Castillo wanted wearing the red Larry Hodge saw man it in Lamb’s gun had been used because camouflaged gun carrying shirt and his abduction thus associated with and was Trudy Hodge alley—the one said was remedy in appropriate murder. Paredes, rather hitting Lamb—was supports when evidence situation than Ruben. included offense conviction lesser re- the sentence remand vacate that, if even all this argues Paredes carrying of sentencing under the lesser Paredes jury to conclude that allowed States, 434 See Theriault fense. alley, it gun still carrying Castillo brandishing there is amount does the five under year will be resentenced gun. ever saw the no evidence Lamb to a carry” minimum “use and that applies if that Paredes was But believed conviction. carrying gun machine man alley, reasonably found could have B. it in a threat- displaying

this amounted Hodge ening Larry testified that manner. argue All that sentenc- four defendants trying up to break the as- he considered (1) the ing carry them for both use and because, changed mind after sault his trafficking during drug offense firearm he for seeing gun, man with the feared 924(c)) (2) (in fire- section and violation safety. and wife’s his his drug relation to traffick- arm murder (in Castillo, 924(j)) of section government ing offense violation As for are testimony no we jeopardy. violates double Because concedes “[t]here handgun vacating or convictions all but either the that she brandished press argu- this govern Olgin, only still agree MAC-10.” he can We v, Ohio, 161, ment, however, 432 was sufficient ment.14 See Brown there (1977) 165, 2221, 97 53-L.Ed.2d 187 guilt of her the basic section evidence 924(c) offense, (stating is a-lesser consecutive sen- carrying “[w]here imposed at a criminal The shows that tences are single included evidence offense. trial, guaran- or role of the constitutional “protect facil used firearm Castillo assuring the court drug trafficking tee is limited group’s itate” the efforts. legal brandishing and affirming It has effect are his murder conviction. 14. Given that we sentence, the, Olgin’s practical life event with its addi- conviction could still have effect in 924(c) punishment tional for the offense has something happens the murder conviction Nonetheless, practical present. no effect or future. life sentence in the legal validity still must address legislative Garcia-Ortiz is “better reasoned” and that not exceed its authoriza- does multiple punishments tion by imposing jeopardy problem, there is a double offense”). the same court rejected district this concession that imposed sentences for Counts and Two Jeopardy provides, Double Clause Thrée merged. should be Siding instead here, “person relevant that no be [shall] Circuit, with the' Eleventh the district subject for the offence to same be twice imposed counts, court sentences both or put jeopardy ‘in of life limb.” U.S. finding 924(c) that section and section This has CONST. Amend. V. not 924(j) offenses, are “distinct which Con- prohibits addressed whether cumula gress intended to punish separate and 924(c) punishment tive under sections consecutive fashions.” We review this issue Second, 924(j). First, Sixth Cir Deshaw, See United States v. de novo. cuits or have held indicated that sentenc Cir. ing for the same conduct both under sec 924(c) 924(j) tions does violate double 924(c) provides in pertinent Section part: Sanchez, States See' United jeopardy. [A]ny person-who, relation (2d 2015) Fed.Appx. 38 n.1 any drug crime violence or. traffick- 924(c) (noting that a section conviction was person crime ... for which the may opposition by govern vacated without prosecuted in a court of the United ment of because was lesser included firearm, who, or uses carries a 924(j) charge); fense of the section crime, pos- furtherance of such Wilson, States v. Fed.Appx. shall, firearm, sesses a in addition to the 2014) (holding the district court punishment provided for such crime of by imposing erred sentences both under violence or trafficking crime— 924(c) 924(j) section and section because (i) be sentenced to a term of imprison- is the former included lesser offense years; ment of than less Garcia-Ortiz, latter); United States v. (1st (ii> (holding if brandished, the firearm is be sen- imprisonment conviction and sentence under tenced to term of 924(c) section years; must less than be annulled because 924(c) section is a lesser offense included (iii) if discharged, be sen- firearm of 924(j)). Although not confronted with a of imprisonment to a tenced term jeopardy challenge double to convictions 10 years. less than 924(c) under both section and section 924(c)(1)(A). § It is accept- U.S.C. well 924(j), the reasoning of an Eleventh Cir aggravated that ed these are offenses for case indicates court allow that cuit would single involving which a a can firearm act punishment See provisions. under both single result in only a and sen- conviction Julian, v. United States 1250, tence. 2011) (concluding that Congress 924(j) A of separate intended section pro- define subsection statute 924(c) a distinct offense from it is vides: and that for Jeopardy purposes” “irrelevant Double who, A person in the course of a viola- proof 924(j) a of section violation (c), tion of causes the death subsection “always proves a of [section] violation firearm, through person of a use (citations 924(c)” omitted)). punished by by shall ... death or be

Although government imprisonment years for or posi- takes term tion First Circuit’s decision life....” for robbery in the first person convicted Every § element sec- 924(j).

18 U.S.C. pun- shall be by any other means 924(c) degree of section is also an element tion by the division of by imprisonment therefore, who violates ished person 924(j); years. than five section for less necessarily violates corrections 924(j) section 362, such, (quoting Mo. 924(j) ...” Id. at 103 S.Ct. 673 924(c). section amounts As 1975)). 924(c) (Supp. § The 560.135 offense” as section Rev. Stat. “same action armed criminal Jeopardy proscribing Clause. of the Double statute purposes States, 284 provides: v. U.S. Blockburger United See (1932) 180, 299, 304, 76 L.Ed. 306 52 S.Ct. any felony who commits [A]ny person determining wheth- (establishing test for with, or by, laws of state under punish the same statutes er two different assistance, use, of a through the or aid explaining that “where offense deadly weapon or is also dangerous a viola- act or transaction constitutes same criminal the crime of armed guilty of statutory provisions, tion of two distinct conviction, and, shall be upon action ... each applied to be whether the test by imprisonment by the divi- punished fact which the requires proof provision for a less of corrections term sion not”). does other years. punishment im- than three shall to this subsection posed pursuant recognize, though, We any punishment pro- be addition to im sentences respect cumulative “[w]ith crime committed by law vided trial, Jeopar the Double posed single assistance, use, with, through the by, or prevent no more than dy Clause does dangerous deadly weapon. or or aid sentencing prescribing greater from intended.” legislature than the punishment Mo. Rev. 559.225 (quoting Stat. 359, 366, Hunter, 459 1976) added)). v. Missouri The em- (emphasis (Supp. (1983). This “crystal S.Ct. L.Ed.2d language made clear” the phasized legislature spe ... a means that to impose “[w]here intent cumulative legislature’s punishment cifically authorizes cumulative 673. punishment. Id. at 103 S.Ct. statutes, regardless of whether under two finding similar based on the We made a proscribe the ‘same’ two statutes those 924(c)—one of section of the stat- language Blockburger,” a under defendant conduct v. United States utes here—in involved punishment. Id. at may receive cumulative Singleton, 16 F.3d 368-69, 103 S.Ct. 673. argued jeopar- double defendants them for both car- very dy punishing result Missouri barred We saw (under fire- Hunter, section and a Supreme jacking Court vacated when the 924(c)). (under Id. at charge section setting aside a defendant’s arms judgment 924(c)—which that section for armed criminal action dou- 1421. We held sentence “in punishment provides that the shall jeopardy grounds. Id. at ble punishment provided to the court had ruled that addition The Missouri predicate] crime violence jeopardy prohibited [the double defendant on trafficking its first-degree on crime”—demonstrates being from both sentenced 924(c)’s § Congress intended for criminal action” aris- face “that robbery “armed and 362-63, cumula- imposed sentence to five-year Id. at be ing from the same conduct. concluded, tively....” Id. at We robbery Under the state’s 103 S.Ct. 673. therefore, may receive statute, person convicted of rob- that a defendant “[ejvery violating punishment for sec- degree by means of a cumulative bery in the first 924(c) carjacking statute that every and the deadly weapon and tion dangerous and

357 violence, on); 924(c)(1)(A) underlying § crime of (providing serves as the 18 U.S.C. for two though the statutes failed the sentence “in punishment even addition to the Blockburger Id. at 1429. test. We reached provided for or drug such crime of violence same in a case in crime”); conclusion which the trafficking see also Albernaz v. was convicted of defendant both section 333, 342, United U.S. 924(c) 844(i) violation and a section offense 1137, (1981) (recognizing 67 L.Ed.2d 275 damaging property by means of an ex- Congress is “aware of the Blockbur- plosive. Nguyen, See United States v. 117 ger rule it in legislate^] and with mind” so (5th 796, F.3d jeopardy the test should control a double question absent indication to the con

Important at features the statutes statute). trary in a 924(c) in issue those section cases and (c) in lacking subsections Hunter are and noteworthy, Also and different from (j) of the firearm statute we are consider- Singleton, Hunter and both dealt ing. importantly, express Most lan- statutes, separate with is that we are faced guage demonstrating legislature’s in- That with subsections the same law. also punishment tent for cumulative is absent likely Congress makes it less intended provides It 924(j). section sentence 924(c) (j) for subsections sentences including or life noting death without conduct, imposed be for especial the same consecutively the sentence should run to a ly any express textual absent evidence 924(c) As for section offense. section Nguyen, such desire. See 924(c), provides that its sentence should more, 924(j) expressly n.1. isWhat section any run consecutive to for sentence 924(c) requires incorporates section underlying drug offense or crime of vio- 924(c) penal violation of section before the lence, drug conspiracy which it for the will 924(j) set forth section can be im ties predicate conviction here as it did for the posed. appeals courts of Most have thus Singleton Nguyen. says offenses in It “fairly interpreted 924(j) as an addi [§ ] however, 924(c) nothing, about a section punishment aggravating tional running consecutively sentence a sen- 924(c).” §in already scheme set out Unit 924(j) tence for a section conviction. There Allen, ed States v. 247 F.3d 924(c) separate provision is a section 2001), granted, judgment cert. vacated stating imprisonment im- “no term grounds, other on 122 S.Ct. posed person on a under this subsection (2002); see 153 L.Ed.2d 830 concurrently shall run with other term Battle, States imprisonment imposed person.” 2002) 9240) (holding that section 924(c)(l)(D)(ii). § prohi- 18 U.S.C. But 924(c)). from section discrete crime bition on concurrent sentences is a much way We read statute the same legisla- weaker basis from which discern by Congress thus an intent do see multiple impose punishments tive intent to punishment impose cumulative under both for what is treated as the same offense subsections for the same conduct. The one than can Blockburger under found direction, pointing in the Jul case other statutory the affirmative Hunt- commands ian, jeopardy involve a double Singleton er on relied that call Instead, was con question. the defendant respect par- consecutive sentences with counts because types two section ticular of other offenses. Mo. Rev. victed committing he used firearms mur (providing Stat. 559.225 two punishment was both to that for offense in- der in connection what in addition another (rob drug offense volving dangerous deadly weap- use of crime of violence and view) dealer). there is insufficient indi- that at 1251- ment’s drug bery of a sentences to charged actually Congress cation that intended way the case was The punishment should 924(j) that both subsection imposed the view under- supports 924(c) for both a section imposed not -be offense subsec- and the included lesser 924(j)' The defen violation. 924(c) a section to over- the same conduct tion charged separate sec not dant The Bloekburger presumption. come the 924(c) offenses; the murder counts tion requires Jeopardy we Double Clause that 924(c) and of both section listed violation 924(c) conviction for Olgin’s section vacate single giving as rise 924(j) section brandishing. court sen at 1252. The Id. district offense. to consecutive life the defendant tenced n y. Id. On for the two convictions. sentences con argued drug that the con the defendant appeal, The convictions on required were not be challenged sentences on appeal. secutive count are spiracy 924(j) separate offense defendants, section cause Ol- Gonzales Two 924(c)’s on con prohibition section which challenge their that gin, do sentences apply. does not current sentences offense, contending that a cross reference agreed, following the Eleventh Circuit not have been used for murder should 924(c)(l)(D)(ii), language section plain their Guidelines calculation. consecu applies prohibition which the offense The cross reference elevates only subsection tive sentences drug to that of a murder level in a case so, rejected the doing In the statute. a victim was killed under circum- case “[i]f sec argument treating government’s constitute that would stances murder....” 924(c) 924(j) separate as tion and section 2Dl.l(d)(l). § Use the offense U.S.S.G. jeopardy a double offenses would create resulted a Guidelines level murder ground It did so problem. “ Although the range prison. of life in dis- 924(c) ‘in for a provides sentence section impose life sen- trict could Id. 1256- to’ other sentence.” addition statutory maximum light tence 924(c)(1)(A)). § But (quoting 18 U.S.C. charge, the elevated drug for the Guide- statute, provides that misread the range lines in the defendants be- resulted 924(c) only that under section sentence maximum, ing to that which is sentenced punishment to the be “in shall addition twenty years. crime violence provided for such crime, U.S.C. trafficking objected to the cross reference Gonzales 924(c)(1)(A),” “any other addition court; Olgin trial did not. But the se ntence.”15 not mat- does different standard review reference was ter as find cross majority thus follow the view We (and applied. govern- properly appeal in the courts 15. Julian 924(c) separate then-govern sets forth heavily on that section also relied hold proven jury. Al must be to a ing precedent providing means of elements that that the 924(c) offense—use, leyne, committing at 2162-63. Julians distin S.Ct. section guishing brandishing, discharge—are just between the two subsections because sentenc factors, sentencing the other 924(j) one forth factors and section sets forth sets whereas They longer no holds. all set an element thus element of offense. 633 F.3d elements, 1253-55, yet one (citing would not forth cause Harris v. United say could be sentenced that a defendant 536 U.S. 924(c) (2002)). carrying for both Supreme has twice under section L.Ed.2d Court brandishing a firearm. now reversed course and overruled Harris ments, challenge arbitrary The defendants’ the cross methods of prosecuting essentially offenses, is pretended reference the same as the arbitrary punish- argument already rejected convictions, we have chal upon arbitrary ments Pinker lenging evidentiary appeared ever great basis me be the en- Indeed, ton liability on gines judicial count. despotism; murder and these have principles the relevant all conduct relation to criminal- proceedings.” See ‘ (Alexander Pinkerton largely 83, Guidelines track No. at 467 The Federalist (Clinton Hamilton) sentencing ed., 1961). standard. For purposes, a de Rossiter The (1) fendant can justice system be liable for conduct that is they, designed protect the scope jointly against “within undertaken those concerns not does allow us to (2) activity,” criminal uphold “in furtherance of convictions based on a theory that (3) that criminal activity,” “reasonably the trial adopted jury reject- - foreseeable in connection with that crimi ed. lB1.3(a)(l)(B). activity.” § nal U.S.S.G. To ruling, summarize our for the Count above, For the reasons Lamb’s stated drug One conspiracy charge, we AFFIRM murder act was a foreseeable within the Olgin. sentences Gonzales and For scope of drug conspiracy each defen the Count Two section 924(c) charge, vacating dant entered into. And our of AFFIRM convic- Gonzales’s and Paredes’s Gonzales’s murder conviction because the tions; Castillo’s VACATE conviction not Pinkerton find for resentencing REMAND under him is no consequence finding him offense; carrying included lesser and VA- responsible sentencing for the as a murder Olgin’s CATE For the Count conviction.' Rodriguez- v. United States matter. See 924(j) charge, Three section we VACATE 1, (1st 2013) Reyes, 714 F.3d Castillo’s, Gonzales’s, con- and Paredes’s (finding application first-degree victions Olgin’s and AFFIRM conviction. murder cross following reference defen is The case remanded for Castillo’s resen- error, drug plain dant’s conviction was tencing entry of judgment for all de- though acquitted defendant even opinion. this consistent with fendants court); v. in state States murders Smith, at CLEMENT, WL Circuit EDITH BROWN. that, (finding *6-7 even Judge, dissenting to Part III A: though the defendant was convicted Castillo; Gonzales, The found murder, not err in the district court did guilty of in connection murder Paredes applying the 2D1.1 cross refer Section drug using a firearm traf- ence). twenty no year There is error in the offense, ficking in violation of 18 U.S.C. sentences on count. § 924(j). majority’s to vacate decision

[*] ^[**] the Section 924(j) convictions ignores the See Unit- guilty. jury’s verdicts appeal—the The result Bran, ed States upheld conviction of being one defendant 2015) (explaining gen- “the conviction for defen- three while other is eral verdict alone sufficient culpable being dants who seem least as conviction”). 924(j) uphold [defendant’s] arbitrary. set no aside—will doubt seem v. United although Musacehio arbitrariness inevitable in a Some system, thought directly controlling, but the is instructive. Founders would — -, in which See prevalent system more (2016). guilt: “Arbitrary impeach- Supreme judges decided L.Ed.2d 639 Court sufficiency challenge should that “a held EDWARDS, R. Thomas against elements

assessed Plaintiff-Appellee crime, against erroneously charged in the jury command instruc- heightened special interrogatory A tion.” Id. CONTINENTAL CASUALTY theory to select requiring the COMPANY, Defendant- additional, liability analogous is un- Appellant in a instruction. necessary element interrogatories did not special here No. 15-30827 material element guilt, concern a Appeals, States Court unnecessary inclusion of Fifth Circuit. imposed bur- interrogatories heightened government. den on “When 2, 2016 Filed November being on all guilt after instructed finds charged one plus elements crime element, has

more made all the Id. I process

findings requires.” due only whether there is

would consider suffi- support general

cient ver- evidence Castillo, Gonzales,

dicts that and Paredes

committed murder connection with us- drug trafficking a firearm

offense.

“Sufficiency essentially review addresses government’s

whether ‘the case was so it should not

lacking that have even been ” jury.’ (quoting to the submitted

Burks v. United (1978)). L.Ed.2d There clearly enough evidence to submit the 924(j) charges jury.

Section

majority exists to concedes “evidence

support Pinkerton for all the de-

fendants as the murder a foreseeable

act in furtherance of committed conspiracy.”

trafficking There sufficient

evidence, theory conspirator’s under

liability, support ver- I guilty.

dicts would Castil- vacate Gonzales’s,

lo’s, and Paredes’s Section

924(j) Accordingly, I convictions. dissent.

Case Details

Case Name: United States v. Anthony Gonzales

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 2, 2016

Citation: 841 F.3d 339

Docket Number: 15-50762

Court Abbreviation: 5th Cir.