United States v. Jacob Harrison, Jr., United States of America v. Casey Seon Burnett

over, Commentary itself sanctions enough by providing alone as

words “ death,’ used in subsection threat of £[a]

(b)(2)(F), form of an oral or may be in the statement, act, gesture, or combi

written U.S.S.G.

nation thereof.” 2B3.1(b)(2)(F), thus emt. n. 6. There is threat Day’s argument

no merit to words and actions requires

of death both

together.

III. Conclusion Sentencing to the

The 1997 amendment did not Day which relies

Guidelines on any- If holding Figueroa. our

alter only reaffirmed the

thing, the amendment context, in that case. In this

outcome exactly almost to the

Figueroa applies us, of judgment and thus the

facts before

the District Court is affirmed. America,

UNITED STATES

Plaintiff-Appellee,

v. Jr., HARRISON, Defendant-

Jacob

Appellant. America,

United States

Plaintiff-Appellee,

Casey Burnett, Defendant- Seon

Appellant. 99-4417, 99-4492.

Nos. Appeals,

United States Court

Fourth Circuit. Sept.

Filed 2001. Nov.

Decided 3A1.2(b) (1998), reckless

Manual during flight, USSG endangerment argue that appellants Both 3C1.2. them erred district court 3A1.2(b) making adjustments conduct, and § based on the same 3C1.2 sentencing in the district court erred for ten-year consecutive sentences them when neither was their firearm convictions 924(c)(l)(B)(i). § violating with charged Shupe, Lout- Deborah R.J. ARGUED: maintains that he received Burnett further SC, Columbia, Louthian, Appel- for hian & of counsel at sentenc- ineffective assistance Bethea, As- Walker lants. Alfred William affirm. ing. We Florence, Attorney, sistant United States Timothy E. SC, BRIEF: Appellee. for ON I. Meacham, & Meacham, Jebaily, Glass 10, 1998, Harrison, Bur- On December P.A., Florence, SC, Harrison Appellant for nett, a in Spann and Tabari robbed bank Attorney, Josey, Rene United States J. Marion, did not Carolina. Harrison South Florence, SC, Appellee. for Burnett and carry gun a into the bank. KING, GREGORY, MOTZ, weapons, alleged Before an Spann carried the After Judges. Circuit a caliber revolver. MAC-11 and .38 a robbery, waiting Harrison ran to the Judge by opinion. published Affirmed wife, Chundra by vehicle driven Burnett’s majority opinion, in wrote the GREGORY Spann Burnett and ran to anoth- Burnett. joined. Judge DIANA Judge KING which driven Fredericka waiting er vehicle opinion an MOTZ wrote GRIBBON children, aged eight Four minor Stanley. in concurring judgment. the years, passengers were also months to two as quickly, in Police arrived the cars. OPINION adjacent lot parking the vehicles left the GREGORY, bank, Judge. Spann purported fired the MAC Circuit pursuing pas- at the officers from the Harrison, Casey Jr. and Seon Jacob A chase high-speed window. senger side pled guilty to armed bank Burnett each followed, getaway cars crashed and both (d) (West 2113(a), § robbery, 18 U.S.C.A. miles. No fleeing after for ten or twelve (West 2000), 2000), § 2 18 U.S.C.A. seriously injured. one was a in a crime of using carrying firearm (West 924(c) 2000), and Bur- violence, sentencing both Harrison 18 U.S.C.A. (1994). nett, three offense the district court added § 2 For the bank rob- 18 U.S.C. 3A1.2(b), finding a term of levels under USSG bery, Harrison was sentenced to police officers in a Bur- had assaulted the fifty-seven imprisonment, Spann months risk of manner that created substantial eighty a sentence of months. nett received bodily injury by firing ten-year consecutive sen- serious Each received another two levels Harrison them. The court added violation. tence for 3C1.2, finding that the district court erred under USSG contends bodily danger created a of serious by making adjustments him for chase getaway cars injury to the children enforcement officer dur- assault on law Sentencing Guidelines public. to the ing flight, U.S.

Harrison not contest the robbery, enhanced a defendant who undertakes a did, sentence under joint but Burnett criminal activity accountable, that the shots fired at the arguing officers purposes, for the reasonably part were not of the offense of conviction conduct of foreseeable the others involved (the bank robbery). questioned He also in furtherance jointly undertaken whether the charged MAC-11 in- activity. criminal USSG § 1B1.3. Further- more, dictment awas semiautomatic assault I Counts and II indictment weapon 921(a)(30), defined which charged each appellants with aiding and specific weapons, lists not including abetting under 18 U.S.C.A. 2. The dis- hearing MAC-11. After testimony trict court did not clearly err in finding agent, federal the district court found Harrison could reasonably foresee that one that the firearm charged as a MAC-11 was of his armed might co-defendants fire a M-ll, actually a SWD a weapon listed in weapon so as to create a risk of serious 921(a)(30). § bodily injury and that the high-speed flight that followed the robbery would endanger Burnett also asserted that he should be in children the cars and the public. sentenced under pre 1998 version of 924(c) § because, after the Supreme B. States,

Court’s decision in v. United Jones 227, 251-52, 1215, U.S. 526 119 S.Ct. 143 Second, we find that the court’s (1999), L.Ed.2d 311 enhancements for such decision adjustments to make under both factors were elements of the offense that 3A1.2(b) § § and 3C1.2 not was error be required were charged be and proved adjustment cause each was based on sepa beyond a reasonable doubt. The district rate conduct. The commentary §to 3C1.2 court found that Burnett had been charged directs that enhancement should not under § the amended version of applied be “where the guideline offense in and Burnett did not pursue the Jones ar- Chapter Two adjustment or another gument further. Three, Chapter equivalent results an or greater increase solely offense level on II. basis the same conduct.” USSG

We legal review district comment, court’s 3C1.2, (n.l). § However, both determinations under Sentencing adjustments may applied be when each is Guidelines de novo. United v. States triggered See, by separate conduct. e.g., (4th Daughtrey, 213, 874 F.2d 216-17 Cir. Alicea, 480, United v. States 205 F.3d 486 1989). However, findings by the district (1st Cir.2000), denied, 909, cert. 531 U.S. for purposes court of sentencing which 256, (2000) 121 S.Ct. 148 L.Ed.2d 185 required legal no interpretation of a Guide (holding that high speed chase and shots fact, are findings line may and be not fired at pursuing separately officers en disturbed Thus, absent clear error. we dangered police public); see also Unit the district review court’s enhancements to ed v. Matos-Rodriguez, States 188 F.3d appellants’ sentences for clear error. (11th Cir.1999), denied, 1300 cert. 529 U.S. 1044, 1547, 120 S.Ct. 146 L.Ed.2d 359

A. (2000); Miner, United States v. 108 F.3d 967(8th We find first that Cir.1997); enhance v. United States Alex 3A1.2(b) under ander, (9th ments 3C1.2 were Cir.1995); F.3d 1477 48 United properly made in (7th Harrison’s case. Though Swoape, States v. 31 482 F.3d Cir. 1994). carry Harrison during the determined, The district court fairness, integrity, or ously affects the awith semi- Spann’s assault agree, we judicial proceedings). reputation of public officers police on the weapon automatic oc- separate the bank was leaving after recently held that has This court high speed, flight from currence factors, 924(c)(1)(A) sets out risk of latter created that the offenses. United not elements children both the injury to or serious death (4th Harris, 806, 812 243 F.3d v. States adjustment an warranting public, Cir.2001). v. Bar States See also United § 3C1.2. (5th Cir.2001); ton, United 257 F.3d 433 (11th Pounds, F.3d 1317 Cir. v. States III. — —, denied, 2000), U.S. cert. court did not that the district findWe (2001) (finding 149 L.Ed.2d S.Ct. mandatory min ten-year imposing err 924(c)(1)(A)(iii) penalty provi appellant’s each imum sentence sentencing implications with stiffer sion not less A sentence of conviction. discharged); is United when a firearm if the firearm prescribed is years than ten (8th Carlson, Cir. 217 F.3d 986 States 924(c)(1)(A)(iii), if see discharged, cert, denied, 1095,121 2000), a “semiautomatic the firearm is (2001) (holding 148 L.Ed.2d 706 924(c)(1)(B)®. The term weapon.” See 924(c)(1)(A)® provision with penalty § defined weapon” assault is “semiautomatic a firearm is implications when sentencing 2000). 921(a)(30) (West § in 18 U.S.C.A. brandished). Thus, one of the because that the sub argue and Harrison Burnett of discharged during the firearms was 924(c) § out set sections fense, impose court was free to the district that, crimes, the indictment because Burnett and on both ten-year sentence weapons charge not that either 924(c)(l)(A)(iii). § under Harrison employed was semiautomatic whether the district Though it is unclear proved and that factor was weapon, Harrison under sentenced court doubt, enhanced their beyond reasonable 924(e)(l)(A)(iii) 924(c)(1)(B)®, ap- § it § rely Ap They unlawful. on are sentences Burnett, the district court that for pears 466, 120 Jersey, 530 U.S. prendi v. New year ten consecutive sen- found that (2000); 2348, 147 435 Castil L.Ed.2d S.Ct. a semiautomatic as- applied because tence States, 120, 120 S.Ct. lo v. United 530 U.S. robbery. in the 18 weapon was used sault (2000); 2090, and Jones. 147 L.Ed.2d 94 924(c)(1)(B)®. recognize § We U.S.C.A. for preserved Burnett this issue Harris, sentencing would have that under that he could not be by arguing review im- if district court appropriate been .the the current version sentenced under violation of years the ten for posed 924(c) because, Jones, the sen § under 924(c)(l)(A)(iii). However, pur- for the § enhancements were elements tencing both de- appeal, of this we assume poses been, be, had not required to were under were sentenced fendants respect proved.” With “pleaded 924(c)(1)(B)®, § and therefore we confine Harrison, plain for we review this issue that sub- under our review raise it below. because he did not error of the statute. section Olano, 725, 731- v. 507 U.S. United States (1993) that under concede 32, 1770, Appellants 123 L.Ed.2d 508 113 S.Ct. 924(c)(1)(A) Hands, up sets ap preserved issue not (holding when factors, argue but that subsections that was must show error peal, defendant 924(c)(1)(B) create elements and seri- rights, affected substantial plain,

225 offenses that must be charged proved 122, 1993. Id. at 120 S.Ct. 2090. They beyond a reasonable doubt.1 Appellants were charged, among other things, with rely heavily on the Supreme 924(c)(1) (1988 Court’s deci- ed.). violation of Id. In United, States, sion in 1998, Castillo amended, statute was and the 120, 2090, (2000). 120 S.Ct. 94 L.Ed.2d language and structure of the statute There, the Congress Court found that in- changed. See 18 U.S.C.A. Histori- tended the firearm type-related words cal and Statutory Notes/Amendments. (such machine-gun) Thus, it used though Castillo is recent opinion, 924(c)(1) to refer to of sepa- elements its holding, which is substantially based on rate, aggravated crimes rather than sen- the language and structure of the statute tencing factors that an enhanced amended, authorize before it was distinguishable. penalty. 2090. The First, important most to our analy- Court concluded that because statute’s sis, we note that the language of structure, language, and history context has changed. The statute longer pro- no favored a “new crime” interpretation, the vides for a determinate statutory sentence. indictment identify must the firearm type, Instead, requires it a sentence of “not less and that element must be proved beyond a than years” for the use of a semiauto- 123-24, reasonable doubt. Id. at 120 S.Ct. matic assault weapon, and “not less than Appellants recognize that Castillo years” for a machine-gun.3 This is the was based on a previous version of language of a mandatory minimum sen- 924(c),2 incorrectly but maintain that the tence, imposed to be where a defendant analysis is the same under versions. both has committed a base crime and certain petitioners The in Castillo were mem- aggravating present. circumstances are bers of the Thus, Branch Davidian religious sect provision as a marking a sepa- out who were involved the offense, 924(c)(1)(B) confrontation rate would in- be with ATF agents Waco, near Texas in complete; it sets forth no determinate charged firearm, who, 1. The appellants indictment the with any or in furtherance of such knowingly using crime, carrying firearm, a shall, "Mac-11 possesses a in addition pistol.” argue Appellants semi-automatic punishment provided to the for crime such of that the indictment was insufficient because trafficking it or drug violence crime—(cid:127) weapon not state that the was a "semiau- (i) imprisonment be to a sentenced term of tomatic weapon.” years; of not less than (ii) brandished, if the firearm is be sen- (c)(1) Whoever, during 2. and in relation to tenced imprisonment to term of of not ..., any crime of violence uses or carries a less than 7 years; and firearm, shall, in pun- addition to the to the (iii) if the discharged, firearm is be sen- provided ishment for such crime of violence imprisonment tenced to a term of of not ..., imprisonment be sentenced to for five years. less than 10 years, and the if firearm is a short-barreled (B) possessed by If the person firearm shotgun rifle impris- [or a] short-barreled to convicted of a violation of this subsection—(cid:127) years, onment for ten and if the firearm is a (i) rifle, is a short-barreled short-barreled imprisonment machine thirty ... to shotgun, weap- or semiautomatic assault years. on, person the shall be to a sentenced (1988 ed., V). of imprisonment term supp. of not less than 10 years; or (c)(1)(A) (ii) 3. Except greater to the that a machine-gun extent ais or a de- destructive vice, provided minimum sentence is otherwise equipped or is with a firearm silenc- by any provision muffler, this subsection or other person of er or the firearm shall be law, who, any person during and in relation imprisonment sentenced ato term of of violence, any to of ... or years. uses carries a crime not less than proved be- the classification need not be any upper limit on sen- or even sentence Id. at 550-51. yond a reasonable doubt. only sense as sen- tencing. It makes found was no The Seventh Circuit there judge’s that cabins a discre- tencing factor un- convictions Apprendi for the violation because a sentence imposing tion when 924(c)(1), statutory maximum carry der §in for which base offense regardless imprisonment, sentence of life imprisonment. is life penalty maximum defendant is sen- of what subsection the in the statute’s change In to the addition at 551. The classifica- tenced under. Id. that the structure of the language, we note the firearm —here as a semiauto- tion of amend- changed with the 1998 statute also weapon matic assault not increase —did reaching In its decision Castillo ment. it penalty; maximum rather raised 924(c)(1) cre- that earlier version of this years. minimum from 5 to 10 Id. penalty criminal offenses based on ated decision, used, reaching the Seventh Supreme its of firearm type statutory structure importance of the Circuit scrutinized emphasized the Court both before and after the 1998 The noted that statute’s structure. Court distinguished It as car- Amendment. Castillo “Congress placed the element ‘uses or law).” at (governed by old gun’ the word ‘machine “an old case ries a firearm’ and sentence, n. 1. The noted that the “struc- up with Court single broken Castillo, present ture incarnation dashes or subsections.” 924(c)(1) dif- three one at issue here —is at 120 S.Ct. 2090. The next —the Now, the first clause quoted sec- ferent.” Id. sentences that follow the above 924(c)(1) 924(c)(1), alone, standing defines the refer di- of pre tion of the carrying a firearm dur- using the first to recidi- offense of rectly sentencing: to sentences, violence, vism, while subsections ing a crime of the second concurrent (A) (B) out subsets of those Supreme single Id. The parole. the third to carry during or use firearms persons [who “structural features Court found these drug trafficking] for job of the crimes of violence or strongly suggest the basic punishment. change The is the definition of more severe entire first sentence statute, with language coupled three remaining crimes and the role of the (such the “sentenc- change, this structural favors description of the factors recidivism) holding As the ordinarily only ing interpretation. factor” pertain in in with our decision Supreme comports Id. Sandoval sentencing.” As the Court Castillo, the statu- interpretation 1998 Hards and our of recognized in the statute’s tory changes, we find that the district restructuring, separated which different (and others) sen- properly imposed into court the enhanced parts of the first sentence subsections, “contrary inter- tences. suggests the

pretation,” favoring sentencing factors IV.

over elements. Id. attorney Finally, Burnett claims that his reasoning find our to be in accord We failing challenge in to the opinion in was ineffective with the Seventh Circuit’s Unit- (7th Sandoval, support an sufficiency 241 549 of the indictment to ed States v. F.3d Cir.2001). possession on of That court determined that the enhanced sentence based failing in weapon, a a assault classification of a firearm as “semi-auto- semiautomatic investigate government’s the evidence weapon” matic firearm, 924(c)(1)(B)® in failing and sentencing concerning factor offense, sentencing. at We find that so raise the issue rather than an element of the

227 Jury conclusively demon- of Model Criminal Instructions have does not the record distinction, attorney commonly was ineffec- all made this and that Burnett’s strate Therefore, traditionally claim of ineffective that have not fire- courts used tive. in raised a motion arm a factor “in type respect should be assistance (West Supp. § 2255 underlying carry’ under 28 U.S.C.A. to an ‘use or crime.” Id. 2000). affirm the sen- Accordingly, we special These historic distinctions were of tences. importance understanding to the Court in 924(c), they because “concern[ed]

AFFIRMED. lying nature of the element closest to the MOTZ, DIANA GRIBBON Circuit using of the crime at or car- heart issue”— in concurring judgment: Judge, such, a rying they provided firearm. As strong support for the Court’s conclusion judgment I concur Congress that meant to make use of a critical revi- majority’s emphasis on the gun separate machine a crime old 924(c)(1)(B), §of but language sions in the 924(c). agree I do not separately I write because majori- entirely with the remainder part analysis applies This of Castillo’s ty’s rationale or its characterization 924(c), equally requires to revised which States, 120, 120 v. United 530 U.S. Castillo significantly higher penalty minimum (2000). 2090, 147 L.Ed.2d 94 S.Ct. gun use of a machine than for use of other thirty years instead of five. Re- Castillo, Supreme In Court firearms — cently, we had occasion to examine another closely language examine the struc- “steeply statute with similar features —a majority suggests, as the ture of that on higher penaltfy]” depended facts The Court also but it did not rest there. government “that the states and federal “context, history, considered the statute’s traditionally have considered elements typically help such other factors as an offense rather than fac- objectives.” a statute’s courts determine that the statute de- tors”—and determined 124, particular Id. at 120 S.Ct. offense rather than a scribed “statutory drafting the Court noted Camp- sentencing factor. United States ... of against backdrop occurs tradition- (4th Cir.2001) (also bell, 293, 259 F.3d 299 categories impor- al treatment of certain Castillo, 125, 120 noting that (quoting tant facts.” Id. Jones v. United Jones, 233, 526 U.S. at S.Ct. States, 227, 234, 119 S.Ct. U.S. 1215, teach that a statute’s “look” is (1999)). L.Ed.2d per- factors dispositive other “[w]here It therefore mattered to the Court intent suasively Congress’ indicate “great” difference Castillo there is elements”). was to create offense using using a machine between Nevertheless, goal analysis of our degree “both in and kind.” Id. at pistol, intent, and Con- Congress’ 2090. As the Court recount- to ascertain ed, type can make firearm recognized gress this difference had been is clear language in “numerous factor if it writes “substantive distinctions” so, light strong punish enough to do even gun crimes” [federal] sale, contrary tradition. case or manufacture of machine transport, 924(c)(1)(B) did, by failing it I think guns weapons and semiautomatic assault for determinate sentences. As pistols. provide no restrictions on placing while notes, provision if this were “a majority noted that Id. The Castillo Court also marking offense” it would judges, and the Manual out legislatures, state at 225. Ante Section “incomplete.” be

924(c)(1)(B) forth no determinate “sets any limit on sen- upper

sentence or even The statute therefore

tencing.” Id. only as a factor

“makes sense im- discretion when judge’s cabins for the base offense a sentence

posing 924(c)(1)(B) 924(c)(1).” provid- §If sentence, but was

ed for a determinate exactly and structured

otherwise written now, that it I would hold created

as it is offense. America,

UNITED STATES

Plaintiff-Appellee, McALLISTER, Andre

Keith

Defendant-Appellant.

No. 00-4423. Appeals,

United States Court of

Fourth Circuit. 27, 2001.

Argued Sept. Nov.

Decided

Case Details

Case Name: United States v. Jacob Harrison, Jr., United States of America v. Casey Seon Burnett

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Feb 20, 2002

Citation: 272 F.3d 220

Docket Number: 99-4417, 99-4492

Court Abbreviation: 4th Cir.