18 U.S.C. § 924(c)(1) imposes criminal liability for using or carrying a weapon “during and in relation to any crime of violence or drug trafficking.” That section also provides for mandatory minimum sentences according to the type of weapon used or carried. The prescribed sentence increases as the dangerousness of the weapon increases.
Appellee Martinez was convicted under section 924(c)(1) for using both a hand gun and a machine gun in relation to the same drug trafficking offense. The district court *147 sentenced Martinez to five years for his use of the hand gun аnd ignored the thirty year minimum sentence prescribed by Congress for Martinez’ use of the machine gun. The government appeals, asking this court to hold that where a defendant is convicted for using multiple weapons, the district court must impose the sentence prescribed for the most dangerous weapon.
We reverse and remand with instructions to the district court to impose the thirty yеar sentence.
I. FACTS
On August 17, 1989, Drug Enforcement Administration (DEA) agents arrested Ap-pellee Roberto Martinez in his home. The agents conducted a protective sweep of Martinez’ house. They uncovered over a kilogram of cocaine, a 9 millimeter pistol, and a fully automatic machine gun.
A federal grand jury indicted Martinez on three counts. Count I was for possession of ovеr 500 grams of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Count 2 and Count 3 were for use of a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1): Count 2 was for Martinez’ use of the mаchine gun, Count 3 for his use of the pistol. After trial, the jury found Martinez guilty on all three counts.
Section 841(b)(1)(B) requires imposition of a mandatory minimum sentence of five years on Count 1 for drug trafficking. Section 924(c)(1) requires imposition of a mandatory minimum sentence of thirty years on Count 2 for the machine gun, and a mandatory minimum sentence of five years on Count 3 for the pistol. Section 924 also requires thаt the sentences must run consecutively to the sentence for the underlying drug trafficking offense. The district court, Judge Alan A. McDonald, held that the forty year sentence required by the statutes violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The district court instead imposed a ten year sentence on Martinez.
This court affirmed Martinez’ convictions on all three Counts, but reversed and remanded for resentencing.
United States v. Martinez,
On remand, the district court sentenced Martinez to five years on Count 1 for drug trafficking, and five years on Count 3 for his use of the pistol, to run consecutively to the sentence on Count 1. The district court stated that “the Court doesn’t know what to do with Count 2.”
The government now appeals Martinez’ sentence. The government argues thаt because the machine gun was the more serious weapon used by Martinez, the district court should have sentenced him on Count 1 and Count 2, and ignored Count 3.
II. DISCUSSION
This appeal presents an issue of statutory construction, which we review
de novo. See United States v. Kohl,
(c)(1) Whoever, during in and in relation to any crime of violence or drug trafficking crime ... uses or carries a fireаrm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle [or] short-barrеled shotgun to imprisonment for ten years, and if the firearm is a machinegun .. .■ to imprisonment for thirty years.
18 U.S.C. § 924(c)(1).
We have held that “each 924(c)(1) count must be supported by a separate predicаte offense.”
United States v. Smith,
924 F.2d
*148
889, 894 (9th Cir.1991). Thus, as the Tenth Circuit said, “where a defendant has been convicted of a single drug trafficking offense and more than one firearm was involved, a single violation of section 924(c)(1) occurs and multiple consecutive sentences may not be stacked to account for each firearm seized.”
United States v. Henning,
Martinez’ trial predated our decision in Smith, so his multiple convictions under section 924(c)(1) based on the sаme predicate offense are an anomaly. After Smith, the district court should consolidate multiple counts under section 924(c)(1) either before or after trial, and before sentenсing, so that there will be only one section 924(c)(1) conviction for any one predicate offense. 1 Even so, the issue remains of the proper sentence where a defendant’s section 924(c)(1) conviction is based on his use of multiple types of weapons which carry different penalties under the statute.
The Sixth Circuit Court of Appeals squarely addressed this issue in
United States v. Sims,
[T]hе sentence imposed by the district court for the violation of section 924(c) should reflect the highest of the sentences which Congress has provided. We believe that by establishing different sentences for different types of weapons, Congress expressed its intention to punish more severely the use and carrying of what it considers to be more dangerous weapons.
Id. at 1236.
The Tenth Cirсuit Court of Appeals also addressed this issue in
United States v. Moore,
Id. at 314.
Martinez argues that Sims and Moore should not be followed. Thе alternative would be to allow the district court discretion to choose among the different sentences mandated for different types of weapons when imposing a sentence for a section 924 conviction. Whether discretion in sentencing is advisable, as a general proposition, is an open question. But the fact is that under section 924(c) any leniency on the part of the sentencing judge would be available only to defendants who carried more than one weapon. Suppose, for example, that a drug dealer was convicted of carrying only a machine gun. His mandatory sentence under section 924(c) would be thirty years in addition to any sentence imposed for the underlying drug offense. But if the same drug dealer added a fеw handguns to his arsenal, he would then have at least a chance of receiving a lesser sentence if convicted. Thus, to allow the sentencing court to choose among the different sentences prescribed for different weapons under section 924 would create a chance of a perverse reward for the criminal who carries more than one weapon. We *149 decline to adopt such a construction of the statute.
Martinez also argues that the district court should be affirmed because in this case the pistol had a closer relationship to the predicate offense than did thе machine gun. This argument is unpersuasive, however, because the jury found that Martinez used or carried both weapons, and we have held that the evidence was sufficient to support Martinez’ convictions on both charges.
Martinez,
Martinez finally invokes the rule of lenity, arguing that any uncertainty in the statute should be construed in favor of the more lenient sentence. We have no occasion to employ the rule of lenity, however, because we find that Congress has expressed its “clear intent to impose more severe penalties for carrying more dangerous weapons.”
Sims,
III. CONCLUSION
We hold that where a defendant is convicted for using multiple weapons under 18 U.S.C. § 924, the district court must sentence the defendant according to the most dangerous weapon used or carried in the offense. We REVERSE and REMAND to the district court with instructions to impose the mandatory thirty year sentence on Count 2 to run consecutivеly with the five year sentence imposed on Count 1. The district court should consolidate or merge Count 3 with Count 2 prior to resentencing.
REVERSED and REMANDED.
Notes
. In
Smith,
the court vacated one of the defendant's two convictions.
See