Case Information
*1 Before R OVNER W ILLIAMS T INDER , Circuit Judges . W ILLIAMS Circuit Judge.
After Thomas room mate failed bring him $9,000 cash he hidden their freezer, kidnapped her, assaulted her, held her her head, demanded she call relatives ob tain cash. A jury convicted attempted extortion interstate communication ransom request, well as three counts distribution events different days tried time. light over whelming evidence against him, we find any error in admitting evidence Cureton obtained cash robbing drug customers gunpoint harmless. Howev ‐ er, agree with him one his two 924(c)(1) convictions using a in connection with a violent felony must vacated. While government main ‐ tains two are proper because he used gun connection with different predicate offenses, both con ‐ victions are based exact same conduct—Cureton pointing a his roommate and demanding she make calls obtain money. Because there only single gun, and predicate offenses were committed sim ultaneously without differentiation conduct, one 924(c)(1) can stand. As result, vacate Cu reton’s sentence and remand resentencing.
I. BACKGROUND Two criminal cases against Thomas Cureton tried together. first case, charged Cureton four counts distributing crack cocaine count being felon possession firearm. At trial, gov ernment presented evidence December 31, 2009, Jan uary 4, 2010, January 7, 2010, Cureton sold crack cocaine confidential informant Belleville, Illinois. On Decem ber police inspector watched as confidential formant called Cureton set up buy. inspector searched informant, gave him $60 recorded bills, watched as informant entered building, then received crack cocaine inform ant informant said sold him. Another ficer maintained surveillance left home drove building meet informant.
The informant made two more crack cocaine buys from Cureton on January 4, In similar fashion to the Decem ber purchase, an officer watched Cureton leave apartment and proceed the agreed upon location. In the first buy that day, Cureton and the informant both entered the building upon their arrival. Soon after Cureton arrived, informant left the building and returned the inspector with crack cocaine he said he purchased from Cureton while building. This sale took place apartment William Bosley, who testified he watched transaction between Cureton and informant. In sec ond January buy, inspector stated he watched informant get into Cureton’s car, no one else car, informant came inspector few minutes later crack cocaine said he bought from Cu reton. contended informant also bought crack cocaine from Cureton on January 7, but ju ry acquitted charge.
During warrant search Cureton’s home later day on January law enforcement agents found inside Cu reton’s wallet marked bills agents had given confidential informant December buy crack cocaine from Cureton. second controlled buy had taken place Bosley’s apartment, officers recovered Bosley’s ceiling tiles two pistols plastic bag, am munition, electronic scale Bosley said hidden there. fingerprints found bag containing pistols scale. second case, faced charges interstate
communication ransom request, attempted extortion, counts possession furtherance ‐ crime violence events on June Two days ear lier, on June man named Eddie Sakosko had approxi mately $9,800 cash him from recent sale his home. Sakosko, Jeffrey Day, and few other friends decided to some money to buy crack cocaine. Day called Cureton, and Cureton delivered drugs to group. friends smoked all crack cocaine and wanted more, so they called Cureton again, and Cureton returned. This time, after Cureton, Day, and Sakosko went into garage, Cureton pulled out gun and demanded money from Sakosko. At one point, Sakosko tried to get gun away Cureton, and discharged. (No injured.) left with $9,500 Sakosko’s cash, and Day and his associates called police and reported robbery.
Two days later, and wife LaQuita (we will refer to her her first name convenience) left apartment they shared eighteen year old Ashley Lawrence and her boyfriend, Demetrius Anderson, who also LaQuita’s brother. A short time later, police arrived looking Cureton. Anderson talked to LaQuita phone after police left, she relayed she and Cu reton wanted cash LaQuita’s puppy brought them. It decided phone having Lawrence bring money them would less suspicious because police seen Anderson. Anderson then directed Lawrence bring $9,000 cash hidden freezer Cu reton LaQuita nearby park. He told Lawrence bring puppy.
Lawrence testified trial she put money newspaper, which she put inside plastic bag, she then carried both package LaQuita’s puppy toward park. Lawrence said she dropped newspaper several times she attempted to also hold dog and some point realized money was missing. When she noticed money was gone, she said she called LaQuita right away and told her what happened. As Lawrence was retracing her steps looking cash, Cureton arrived friend’s car and demanded to know where money was, saying to her he “shot motherf’er head money.” He ordered Lawrence to get car, and they went to friend’s house. Inside, basement, Cureton screamed Lawrence, punched her, threatened her, and questioned her about where money was. Cureton even tually acquiesced to her request chance to find money. Anderson and LaQuita picked up Lawrence and drove her to retrace her steps, but search unsuccess ful.
When Lawrence returned house, took her behind garage and punched her repeatedly, broke her nose, kicked her, choked her, and tied her up. He made phone call and instructed person receiving end line bring him “that thing.” brother ar rived about ten minutes later handed gun. put Lawrence’s head told her her last chance.
Cureton, Lawrence, LaQuita then got into Curet ons’ parked car, and, pressure Cureton, she gan making calls family members. Lawrence first called her mother, saying she needed money get out prob lem, but her mother hesitant light Lawrence’s past history lying. She called her stepfather told him she needed money trouble, but did offer ‐ ‐ to provide money either. Finally, she reached her grandfa ther, who had doubts about Lawrence’s request. Cu reton took phone and spoke to Lawrence’s grandfather, who then agreed to make a wire transfer of about $4,500. Cureton, Lawrence, and LaQuita then headed back to their apartment. Police officers contacted Lawrence’s family present there, Cureton ultimately arrested and charged interstate communication of a ransom request, attempted extortion, counts of possession of a fire arm furtherance of a crime of violence.
Before trial, Cureton’s attorney moved limine bar evidence stolen $9,500 gunpoint prospective drug buyers on June The district court ruled evidence relevant mo tive allowed it.
A jury convicted eight of charged counts found him guilty count of drug distribution. judge sentenced concurrent ‐ month terms for three distribution convictions. Concurrent that, judge imposed a month sentence felon possession of firearm count, concurrent month sen tence for interstate communication ransom request conviction, another concurrent month sentence for attempted extortion count. Consecutive these sentenc es, judge imposed sentence months using firearm during crime violence violation U.S.C. 924(c)(1) crime violence interstate communi cation ransom request. judge imposed another con secutive sentence months’ imprisonment using during second successive crime violence violation 924(c)(1), time crime violence of using connection with the attempted extortion. The result total sentence of (360 + + 300) months’ imprisonment. Cureton appeals.
II. ANALYSIS
A. Evidence of Uncharged Robbery first argues that jury should not been allowed hear evidence he took $9,500 gunpoint drug customers on June 12, not charged case any crime any events took place June 12, he maintains evidence June robbery customers improperly suggested jury he had propensity violence sell ing drugs. Therefore, argues, Federal Rule Evidence 404(b) precludes its admission. Where, here, defend ant timely objected admission evidence before district court, review decision allow evi dence an abuse discretion. Richards (7th Cir. 2013). district court admitted testimony June incident part basis story attempted ex tortion ransom could told otherwise. court stated Lawrence’s story losing $9,000 raised ques tion why she carrying much cash, said story would make sense unless jury given background how acquired money. This explanation sounds like “inextricably intertwined” rationale, rationale which now disfavor because become “overused, vague, quite unhelpful.” Gorman stead,“[i]f evidence direct evidence crime itself, it is usually propensity evidence simply disguised as inextri cable intertwinement evidence, is therefore improper, at least if not admitted under the constraints Rule 404(b).” Id. at
Federal Rule Evidence 404(b) provides that evidence prior bad act “is not admissible prove person’s charac ter in order show particular occasion the person acted accordance the character.” Such evidence may admissible for other purposes, however, including the purpose the asserts here: motive. Fed. R. Evid. 404(b)(2); Spiller
The district court ruled the way ac quired $9,000 went issue motive, permissible reason Rule 404(b). district court recognized June evidence “prejudicial it could be,” but concluded it not unlawfully prejudicial rele vant. evidence admitted at trial, district court instructed jury close evidence: “You have heard evidence defendant committed acts oth er than ones charged indictment—specifically, robbed Everett—that is Eddie—Sakosko gunpoint … . If you decide [robbed Sakosko] then you may consider evidence help you decide de fendant’s motive committing acts charged dictment. You may consider other purpose. Keep mind defendant, Thomas Cureton, trial here offenses charged indictment, other acts.” maintains testimony regarding June events should been allowed show motive
for the ransom and attempted extortion. First, he argues there is no evidence that the money Lawrence took from the freezer and was her way to bring him in the park was the same money Cureton obtained in the robbery. But cer tainly permissible inference, and strong one, the $9,000 Cureton stored his freezer—not place nor mally keeps thousands dollars cash—came from robbery days earlier.
Cureton argues way he acquired money did give him greater motive to recover $9,000 than he acquired money some other fashion. Instead, he contends evidence robbing his clients gunpoint suggested he person likely to violence pursuit money, argues testimony per sons purchased crack cocaine from Cureton twice June served to paint someone with propensity to sell drugs. government, other hand, argued trial robbery showed why needed get away police showed motive for extortion, LaQuita could get away without $9,000 desperately needed money.
We have cautioned about danger applying Rule 404(b) too loosely admit prior bad acts “without paying close attention both legitimacy purpose which evidence used need it.” Miller Miller example, ruled evidence prior felony conviction possession cocaine with intent distribute should been admitted case where charged crime eight years later, along with other charges. While earlier felony rele 1250 12 1251 vant establish the defendant’s status as felon light felon possession charge the case, we ruled the “admission details” the prior violated Rule 404(b). Id. at 700; cf. United States v. Cunningham , F.3d 553, (7th Cir. 1996) (“The greater overlap be tween propensity motive, more careful district judge must about admitting rubric motive evidence jury is likely instead basis inferring defendant’s propensity, habitual criminali ty, even if instructed not to. But tool preventing abuse is Rule 403, not Rule 404(b).”). Here too, it is not clear details how obtained $9,000 were rel evant. Defense counsel argued before trial all mat tered had $9,000, circumstanc es how obtained money were relevant matters at trial would inflame jury. In addition, put three witnesses trial testify taken money after deal; why three witnesses necessary is clear.
Ultimately we need decide if evidence properly admitted because even if not, would next look see whether its admission nonetheless harmless. v. Stevenson , F.3d 747, (7th Cir. 2011). assessing whether error harmless, ask whether an average juror would find prosecution’s case significantly less persuasive without improper evidence. Miller burden demonstrating harmlessness rests government. O’Neal McAninch U.S. (1995); Robinson
In this case, the evidence Cureton kidnapped and ransomed Lawrence overwhelming and essentially un challenged. Lawrence testified detail about how Cureton treated her, his plan to extort money her family mem bers, and the calls she made her family. Cureton’s counsel did cross examine Lawrence trial. admission the challenged evidence did prejudice Cureton on the counts attempted extortion communication ransom request.
We also find admission the challenged evidence harmless drug distribution counts. three con trolled buys led were all supported by testimony confidential informant who testified trial. addition, jury heard law enforcement officials were present while informant and Cureton made phone calls set up deals they watched Cureton left home went agreed upon meeting place during each deals. Another witness, William Bosley, testified watched second deal between confidential informant Bosley’s apartment, Cureton’s fingerprints found electronic scale bag containing pistols Bosley said hidden Bosley’s ceiling tiles. Notably too, some “buy mon ey” provided informant sole purpose buying drugs during first sale found wallet seven days later. That jury acquitted distribution counts suggests swayed June evidence. Under circumstances case, conclude admission challenged evi dence harmless. 1251
B. Multiple U.S.C. § 924(c)(1) Convictions pointed single gun at Lawrence a single time. For of firearm, convicted twice of violating U.S.C. § 924(c)(1). Cureton, however, maintains conduct this case can support conviction for violating § 924(c)(1).
Section 924(c)(1) provides that: any person who, during relation any crime of violence or drug trafficking crime … uses or carries firearm, or who, furtherance of any such crime, possesses firearm, shall, addition punish ment provided for such crime violence or traf ficking crime
receive term imprisonment less than years. U.S.C. § 924(c)(1)(A)(i). That minimum term imprison ment mandatory. See id .; States statute further provides “[i]n case second subsequent conviction subsection,” shall sentenced term imprisonment least years, another sentence which judges no discretion. 924(c)(1)(C)(i). Each term imposed violating 924(c)(1)(C) must run consecutive term other conviction. id .;
Here, requested, district court imposed, two separate basis used during commission predi cate “crimes violence”: one, interstate communication ransom request, other, attempted extortion. (Cu reton does contest both crimes are “crimes vio lence” the statute. Nor does contest he used gun “during and relation to” “in furtherance of” predicate crimes.) The offenses communication an terstate ransom request and attempted extortion prem ised exact conduct—the telephone calls Law rence’s relatives demanding money her release. The gov ernment agrees committed two predicate offenses simultaneously and there is no distinction conduct gave rise two predicate offenses. Nor is there distinction use firearm, pointed Lawrence single time.
But because predicate offenses interstate commu nication ransom request attempted extortion different elements are distinct offenses, government maintains two 924(c) convictions are proper here. It is true each predicate offense contains element other does not, neither is lesser included offense other; does maintain convictions both interstate communication ransom request tempted extortion violate Double Jeopardy Clause Constitution. Cf. Blockburger United States U.S. (1932); Loniello With no Double Jeopardy violation, maintains 924(c) convictions should stand. absence Double Jeopardy problem does end inquiry, however. issue here is statutory
terpretation, constitutional reach, so question focus whether may receive multiple when predicate offenses are committed simultaneously ‐ 1251 without any distinction conduct. We review this question of statutory interpretation de novo. United States v. O’Hara 563,
Although contends otherwise, our circuit has not yet resolved question. So called “unit prose ‐ cution” questions long arisen before courts. Does a baker who sells four loaves bread on a single Sunday vio ‐ late a prohibition on working on Sundays once, or four times? Lord Mansfield wrote for unanimous court Crepps v. Durden, Eng. Rep. (K.B. 1777), doing so constitutes one offense because “[h]ere, repeated ‐ fenses are object which Legislature view making statute: but singly, punish man exercis ing ordinary trade calling on Sunday.” Id. 1287. similar vein our Supreme Court ruled transporting women car same trip constituted on ly one violation Mann Act’s prohibition transport ing interstate commerce “any woman or girl pur pose prostitution or debauchery, or other immoral purpose.” Bell U.S. (1955). Court stated statute did contain clear expres sion desired unit prosecution, it reasoned when “Congress does fix punishment federal offense clearly without ambiguity, doubt will re solved against turning transaction into multiple fenses.” Id.
Indeed, Congress who establishes defines fenses, whether particular course conduct involves more distinct offenses statute depends Congress’s choice. Sanabria U.S. (1978). That is, legislature defines unit prosecution. *15 15 12 1250 & 12 1251 Nat’l Ass’n of Home Builders v. Occupational Safety Health Admin. , 602 F.3d 464, 467 (D.C. 2010). Our task here, deter ‐ mining “unit prosecution” § 924(c) case, i.e., “the minimum amount activity which criminal liability at ‐ taches,” is straightforward one. United States v. Mo ses , 513 F.3d 727, 731 (7th Cir. 2008) (citation omitted); see also Callanan v. United States , 364 U.S. 587, 597 (1961) (describing unit prosecution “whether conduct constitutes one or several violations single statutory provision”). A convic tion under statute depends upon an underlying crime violence or trafficking crime, but “§ creates offense distinct underlying federal felony.” Simpson v. , U.S. 6, (1978).
Following Supreme Court’s Mann Act decision Bell , ruled may be separately charged unlawful possession multiple stolen fire arms under U.S.C. § 922(j) when firearms ac quired at time stored at same location. McFarland Pickett , F.2d (7th Cir. 1972); see Moses F.3d 731; Buchmeier That is, when defendant’s possession multiple firearms “simultaneous undif ferentiated,” only one 922(j) violation may charged re gardless quantity firearms possessed. Buchmeier Likewise, act possession can re sult U.S.C. 922(g), even if 1250 12 1251 defendant violated § 922(g) in multiple ways pos sessed multiple firearms same time. United States v. Bloch , F.3d 638, (7th Cir. 2013) (ruling convic tions both possession of by a felon violation of § 922(g)(1) and a person a misdemeanor domestic violence conviction violation § 922(g)(9) were improper when there only one gun possession, holding a single appropriate); see also United States v. Parker F.3d 434, (7th Cir. 2007) (“§ 922(g) cannot support multiple based a fire arm possession because allowable unit prosecution incident possession, defendant’s membership a class (or classes) persons disqualified posses sion.”).
We held distinctly committed crimes, even those committed same day, can support multiple 924(c) violations consecutive sentences result. Paladino (7th Cir. 2005). So where an armed defendant sold crack person morning, after arming himself again sold crack another person afternoon, we said, “These un questionably separate offenses, therefore carry ing a during each them constituted violations section 924(c).” Id. And affirmed enhancement use bomb rob bank even though defendant been convicted 924(c)(1)(A) use fire arm during bank robbery, reasoning use bomb substantively substantially different than firearm. White reaching decision, looked part fact provides separate offense when uses destructive device such bomb commit a crime. id. (discussing § 924(c)(1)(B)(ii)). Since defendant convicted under § 924(c)(1)(A) using a firearm, that statute’s five year sen ‐ tence using a did not account use bomb enhancement proper. Id.
Unlike Paladino or White case involves two predicate crimes that occurred simultaneously without distinction in conduct along with use a fire arm. government maintains we determined in Unit ed Cappas 1994), multiple convictions are permissible in such situation. But we disa gree Cappas resolved question we before us now. defendant in Cappas charged with multiple counts, including multiple § 924(c) counts. One those § 924(c) counts, count charged used gun in rela tion two predicate offenses: drug conspiracy ex tortion.
Consistent with our reasoning in cases like McFarland, stated in Cappas mere use multiple guns in sin gle drug conspiracy could support multiple convictions under § 924(c). Id. Because another count alleged Cappas violated 924(c) using gun connection with conspiracy, government argued jury based its 924(c) count gun connection with extortion, connection with con spiracy. It context made statements seizes upon now: “While can convicted twice using guns connection trafficking violent offense, separate are permissible so long court’s instructions require jury connect each separate predicate offense. And ‘separate offense,’ we mean no more than that two cannot be offense dou ‐ ble jeopardy purposes.” Id. (citations omitted). But we followed that statement with, “Therefore, if jury finds a used gun in connection with a narcotics distribution count, another in connection with a gen ‐ eral conspiracy (of which distribution a part), may be convicted two § 924(c) charges.” Id. (emphases added).
Cappas did not, however, present us with issue we have now, of simultaneous predicate offenses a sin gle use a single gun. Read out context, some our lan guage Cappas might suggest so long as there are dif ferent predicate offenses, like here, multiple § 924(c) convic tions can result. But we clearly did hold multiple § convictions may result predicate offenses com mitted simultaneously without differentiation conduct, single use a firearm, as an sue before us there. And our statement using “one gun” connection with distribution count “another gun” connection general conspiracy makes clear we discussing use here. id.
Nor did resolve issue before us today Curtis 2003), another case which points. Curtis involved challenge U.S.C. 924(j), which makes fense “cause[ ] death person through firearm” while “in course violation of” 924(c). question Curtis whether defendants could con victed violations 924(j) two separate killings where both § 924(j) counts same predicate § 924(c) violation (the same drug conspiracy). We ruled two 924(j) proper, one for each mur der. Id. at That interpretation of 924(j) makes sense is at all inconsistent position, as defendants Curtis caused death of two different per sons on different days .
So yet confronted whether a like may convicted multiple times of violating use of a single gun where underly ing predicate offenses involve exact conduct. statute makes a criminal if “uses,” “carries,” or “pos sesses” a firearm “during relation to crime vio lence or trafficking crime.” statute does punish mere use, carriage, or possession firearm; do so would run afoul Second Amendment. See District Columbia v. Heller U.S. (2008) . Nor is enough look simply predicate offense, ar gues should do. Section 924(c)(1) imposes its punishment based use firearm (and provides increased punishment based how firearm is used)—not nature predicate offense. So unit prosecution use, carriage, or possession during relation predicate offense. Phipps Cir. 2003); see Anderson (D.C. 1995) (en banc) (reasoning Congress intended “penalize choice using or carry ing gun committing crime ” citing statement amendment sponsor Senator Mansfield saying, “[T]his bill provides first time separate additional penalty mere act choosing carry commit ting crime Federal law,” Cong. Rec. 34,838 ‐ (Nov. 1969)); United States v. Camps , F.3d 102, (4th Cir. 1994) (stating that § 924(c) does criminalize un derlying predicate offense but rather “proscribes, a sepa rate distinct offense, use or carry of a firearm during commission of or in relation to these predicate offens es”).
Because only used a firearm once, in simul taneous commission of two predicate offenses, we agree with him may only stand convicted one violation § 924(c) . doing so, agree with reasoning like District Columbia Circuit’s decision Wilson F.3d (D.C. Cir. 1998). There, a defendant killed witness scheduled testify at trial. For act, was convicted violations § 924(c) predicated crimes first degree murder killing witness with intent prevent him testifying. But circuit court vacated one convictions, rea soning however many crimes may been committed shooting potential witness, there only one use firearm. Id. court reiterated its conclusion earlier decision statute’s purpose penalize choice using carrying gun committing crime. id. (citing Anderson
Here too, there only one use along simultaneously committed predicate offenses. That is, there only one choice committing crime. With no clear indication Congress intended more than one 924(c)(1) punishment result, conclude best interpretation statute one authorizes 924(c)(1) such circumstances. See, e.g., Johnson 1994) *21 21 12 1250 12 ‐ 1251 (“[A] sensible construction dictates that possession of one or more firearms conjunction predicate offenses involv ing simultaneous possession of different controlled sub stances should constitute only one offense under § 924(c)(1), sentences § 924(c)(1) should be for one offense only.”). We join our sister circuits who have reached same conclusion. See id. ; Phipps , 319 F.3d at 186 88 (conclud ing § 924(c)(1) only authorized one conviction a single use of a single firearm during commission of multiple predicate offenses, turning part rule of lenity); Unit ed States v. Finley , F.3d 199, 207 (2d Cir. 2001) [2] ; Wilson, F.3d at Decisions upholding two punishments use furtherance simultaneous predicate crimes do not persuade us otherwise. The government points us the Eighth Circuit’s decision Sandstrom F.3d (8th Cir. 2010), which held mere fact sep arate predicate offenses supported two convictions sim ultaneous conduct. It reasoned counts “distin guishable from one another because defendants ‘used’ firearm at issue both counts commit separate fenses, even though offenses occurred simultaneously.” Id. at 659. Fourth Circuit has stated “[a]s long underlying crimes are identical Block burger analysis, then consecutive section 924(c) sentences are permissible.” Luskin As we have discussed, though, we do think these interpretations are consistent statute. con struction urged by would punish only underlying predicate offenses themselves, yet statute’s purpose is punish choice or possess committing predicate offense, addition punish ment otherwise imposed predicate crimes.
Now we determined one Cureton’s 924(c) cannot stand, next question is proper remedy. maintains should simply strike sec necessarily precedes entry final judgment conviction. Id. Our case about whether Cureton’s is second or subsequent, but rather about whether conduct can sustain more than one 924(c) conviction. Wilson n.22. We reach our decision concluding text statute means conduct can support conviction, conclude without aid “second subsequent” phrase. *23 23 ‐ 1250 12 ‐ 1251
ond and its mandatory twenty ‐ five year sentence, and then subtract twenty ‐ five years ‐ month sen ‐ tence. government’s position is we should remand Cureton’s case for resentencing.
“A district judge’s sentencing decision ordinarily con ‐ cerns entire ‘sentencing package.’” Pen ‐ nington , F.3d n.3 (7th Cir. 2012) (citing Smith F.3d 1996)); see Smith at (“[W]hen part sentence is vacated entire sentencing package becomes ‘unbundled’ and judge entitled to resentence defendant all counts.”). district court’s comments sentencing reflect its intent receive significant sentence:
[T]o tie up young woman and kick, beat her, and threaten cut her, and to bring other people to frighten her, then call her family, just horri ble, horrible, horrible experience everyone volved is—is cold vicious almost beyond descrip tion. I would have given you life sentence if statute authorized it irrespective what guide lines provided case.
We cannot be assured district court known could be convicted 924(c)(1) count, its consideration sentence thought appropriate met requirements 3553(a) would meant sentence months minus twenty five years. As result, vacate sentence remand resen tencing, decline restrict court’s consideration resentencing simply excising twenty five year sen tence seeks. Cf. Bloch (remand ing resentenced count con *24 24 12 ‐ 1250 12 ‐ 1251 viction after ruling that violating both § 922(g)(1) 922(g)(9) based act posses sion multiplicitous must be merged).
C. Impact Alleyne v. United States light Supreme Court’s decision Alleyne v. United States , S. Ct. 2151 (2013), contends first time appeal that he unconstitutionally subjected seven ‐ year mandatory minimum sentence first 924(c)(1) that based brandish ing finding neither charged indictment nor found jury. See 924(c)(1)(A)(ii) (mandating seven year minimum term if brandished). Because did object seven ‐ year mandatory minimum before district court, must satisfy plain error standard receive relief. United States v. Kirklin , 711, (7th Cir. 2013) . Under that standard, will reverse decision unless demonstrates (1) there error; (2) error plain; (3) error affected defendant’s substantial rights. United States v. Olano , U.S. (1993). If those conditions are met, may reverse if error “seriously affect[s] fair ness, integrity, public reputation judicial proceed ings,” id. is, if error would result miscarriage justice, Ramirez Fuentes
Overruling its decision Harris U.S. (2002), Supreme Court held Alleyne fact increases mandatory minimum sentence, other fact prior conviction, “is ‘element’ must submitted jury found beyond reasonable doubt.” S. Ct. Here, judge found sentenc ing preponderance evidence that Cureton bran ‐ dished firearm connection crime violence. This brandishing finding increased mandatory mini mum sentence an § 924(c)(1) from five years seven years, district court sentenced Cureton seven years’ imprisonment conviction. That brandished firearm was neither charged indictment nor submitted jury, however. As re sult, agrees there was error Alleyne as do we.
We ruled Kirklin Alleyne error was not mis carriage justice where evidence brandishing such found it highly unlikely jury would have convicted § count but acquitted him brandish ing. Kirklin That case here well. case, only evidence trial concerning brandishing came from Lawrence, defense did cross examine her. Lawrence testified “came over [her] put up [her] head,” asked her where money was, told her her last chance, said she would never see her daughter again. While Cu reton asserts he challenged Lawrence’s credibility closing argument, fact remains jury found him guilty violating 924(c)(1). As evidence present ed support 924(c)(1) charge Lawrence’s testi mony, sole basis jury’s verdict guilty came testimony. jury could rationally con victed 924(c)(1) charge yet believed did brandish gun. As result, there no plain error.
III. CONCLUSION A FFIRMED . We V ACATE sen
tence R EMAND resentencing accordance opinion.
[1] That statute makes unlawful to, among other things, “receive, pos sess, conceal, store, barter, sell, or dispose stolen firearm or stolen ammunition” has been interstate or foreign commerce, “knowing having reasonable cause believe or ammunition stolen.” 922(j).
[2] The Second Circuit’s approach suggests would find one 924(c)(1) appropriate possession firearm pred icate offenses where predicate offenses may not be simultaneous, but were “nearly so.” Finley , 207; see also United States v. Wal lace , F3d n.2 (2d Cir. We need not decide today situation predicate offenses were simultaneously committed. We note Third Circuit’s decision Casiano (3d 1997), case which points, seems involve situation. Casiano court affirmed imposition 924(c)(1) during predicate fenses kidnapping carjacking. court spoke “criminal course conduct carjacking (the first predicate offense) kidnapping (the second predicate offense),” id. suggesting while predicate offenses were committed during course conduct, they were committed simultaneously like our case.
[3] Section 924(c)(1) imposes mandatory sentence “second or sub sequent conviction,” might inclined argue fact predicate offenses committed simultaneously means did second subsequent conviction. Supreme Court Deal U.S. (1993), considered meaning “conviction” ruled term means finding guilt