United States v. Brown, Kevin

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 7, 2006 Decided June 2, 2006

No. 04-3159

UNITED STATES OF AMERICA,

APPELLEE

V.

KEVIN PATRICK LUKE BROWN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00405-01)

Edward C. Sussman, appointed by the court, argued the

cause and filed the briefs for appellant.

Steven W. Pelak, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Kenneth L.

Wainstein, U.S. Attorney, and Roy W. McLeese III and

Frederick W. Yette, Assistant U.S. Attorneys.

Before: RANDOLPH and TATEL, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

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WILLIAMS, Senior Circuit Judge: Congress has provided

a minimum sentence of five years for any person who, in

relation to any crime of violence, “uses or carries a firearm, or

who, in furtherance of any such crime, possesses a firearm.”

18 U.S.C. § 924(c)(1)(A)(i). The minimum penalty increases

to seven years if the firearm “is brandished,”

§ 924(c)(1)(A)(ii), and to ten if it “is discharged,”

§ 924(c)(1)(A)(iii). The question here is whether the

accidental discharge of a weapon triggers a ten-year sentence

for discharging. Phrased more formally, the question is

whether an intent requirement is implicit in the discharge

provision. We conclude that it is.

* * *

The relevant facts are undisputed. About ten minutes

before it closed, Kevin Patrick Luke Brown entered a

SunTrust bank in downtown Washington, D.C. with a semi-

automatic pistol. Brown approached the bank’s acting

manager and forced her, at gunpoint, to lead him into the

locked teller area. Once inside, Brown directed another bank

employee to put money from the tellers’ drawers into a bag.

Irritated because he thought she was moving too slowly,

Brown snatched the bag, threw it at another employee, and

jammed the barrel of the gun into the back of the second

employee’s head. That employee then stuffed cash into the

bag before handing it back to Brown. As Brown closed the

bag, his gun fired. Apparently startled, Brown asked, “Did I

hurt anybody? Did I hurt anybody?” The bank employees

responded that no one was injured; as it turned out, the bullet

had lodged in the bank’s ceiling. Brown then forced the

second employee, at gunpoint, to direct him to an exit in the

back of the bank. The police apprehended Brown moments

later, aided by a SunTrust customer who had seen the robbery

through a window at the bank’s entrance.

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The judge asked the jury not only for its verdict on the

armed-robbery count (violation of 18 U.S.C. § 2113(a), (d))

and the firearm count (violation of § 924(c)(1)(A)), but also

on whether the firearm was discharged during the robbery.

About ninety minutes after the judge dismissed the jury to

begin its deliberations, he received a note asking whether the

gun had to have been discharged knowingly. The judge

responded in the negative. Shortly thereafter, the jury

returned two guilty verdicts and a finding that the firearm had

been discharged. As the judge had before trial granted

Brown’s unopposed motion to sever the felon-in-possession

charge under 18 U.S.C. § 922(g) and to proceed without a

jury, the judge himself found guilt on that issue. The judge

imposed a sentence that included ten years under

§ 924(c)(1)(A)(iii).

* * *

We review the district court’s interpretation of a criminal

statute de novo. United States v. Wade, 152 F.3d 969, 972

(D.C. Cir. 1998). So far, two circuits have interpreted the

discharge provision and have reached different conclusions as

to intent. The Tenth Circuit found no such requirement,

United States v. Nava-Sotelo, 354 F.3d 1202, 1206 (10th Cir.

2003), while the Ninth Circuit recently found that the

government must show “general intent,” United States v.

Dare, 425 F.3d 634, 641 n.3 (9th Cir. 2005). We agree with

the Ninth Circuit that there is an implicit requirement of

general intent, precluding liability for the accidental discharge

of Brown’s weapon.

We start with the text of § 924(c)(1)(A):

Except to the extent that a greater minimum sentence is

otherwise provided by this subsection or by any other

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provision of law, any person who, during and in relation

to any crime of violence . . . uses or carries a firearm, or

who, in furtherance of any such crime, possesses a

firearm, shall, in addition to the punishment provided for

such crime of violence . . .

(i) be sentenced to a term of imprisonment of not less

than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of

imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of

imprisonment of not less than 10 years.

As the text makes clear, the minimum penalty doesn’t kick in

anytime a gun is present on the scene of one of the specified

crimes; instead, the firearm must be used or carried “during

and in relation to” the crime, or possessed “in furtherance of”

the crime. See Muscarello v. United States, 524 U.S. 125

(1998) (interpreting “carry” provision); Bailey v. United

States, 516 U.S. 137 (1995) (interpreting “use” provision);

United States v. Gaston, 357 F.3d 77, 82-83 (2004)

(interpreting “possession in furtherance of”); United States v.

Wahl, 290 F.3d 370, 375-77 (D.C. Cir. 2002) (same).

The three subsections of § 924(c)(1)(A) penalize

increasingly culpable or harmful conduct. The government

doesn’t dispute that the five-year sentence in § 924(c)(1)(A)(i)

requires proof of mens rea. See United States v. Harris, 959

F.2d 246, 258 (D.C. Cir. 1992) (saying, in interpretation of

§ 924(c) prior to 1998 amendment that appears irrelevant to

this issue, “Consistent with the presumption of mens rea in

criminal statutes, we assume that section 924(c) is violated

only if the government proves that the defendant . . .

intentionally used firearms in the commission” of the crime.).

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Nor is there any dispute that the bump to seven years for

brandishing in § 924(c)(1)(A)(ii) requires a separate

intentional act. Congress defined “brandishing” as

“display[ing] all or part of the firearm, or otherwise mak[ing]

the presence of the firearm known to another person, in order

to intimidate that person, regardless of whether the firearm is

directly visible to that person.” 18 U.S.C. § 924(c)(4)

(emphasis added). A requirement of intent for the discharge

provision would be consistent with this progression on the

face of § 924(c)(1)(A); it would reserve the ten-year minimum

penalty for the unambiguously more culpable act of

intentionally discharging a firearm.

To be sure, discharges of a firearm are more likely to

cause severe injury or even death than mere brandishing

(though in cases where they actually do so the defendant

would virtually always become independently guilty of

another, major substantive offense). Nonetheless, as between

an intentional brandishing and a purely accidental discharge,

the increment in risk, given the less reprehensible intent,

seems inadequate to explain a congressional intent to add

three years (or five years if the discharge occurs without

brandishing).

Moreover, the presumption against strict liability in

criminal statutes supports the inference of an intent

requirement. Our circuit has said that “[a]lthough cases

generally apply [this presumption] to statutes that define

criminal offenses, we have little doubt that it should also be

applied to legal norms that define aggravating circumstances

for purposes of sentencing.” United States v. Burke, 888 F.2d

862, 866 n.6 (D.C. Cir. 1989). Like the rule of lenity—which

the Supreme Court has stated on several occasions applies not

only “to interpretations of the substantive ambit of criminal

prohibitions, but also to the penalties they impose,” Bifulco v.

United States, 447 U.S. 381, 387 (1980)—“the presumption

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against strict liability is founded on the principle that laws that

deprive an individual of his liberty should be strictly

construed. Laws that enhance the sentence of a criminal

defendant meet this description.” Burke, 888 F.2d at 866 n.6

(citation omitted).

The government argues that “[t]he ten year mandatory

minimum sentence is applicable ‘if the firearm is discharged.’

. . . No words of qualification or limitation are included.”

Brief for Appellees 39 (citation omitted). But at oral

argument the government conceded some implicit limitations:

for example, that the statute (despite its use of the passive

voice) wouldn’t render an armed robber liable for the

discharge by a law enforcement officer or bank teller who got

a hold of the robber’s gun and used it to threaten the robber.

See Oral Argument Recording at 16:58-17:26. Even with that

concession, however, the government’s reading would

produce a mandatory ten year sentence (i.e., five more than

under the basic possession bump) if a defendant’s weapon

accidentally discharged when he dropped it to comply with a

police request to do so.

The government’s other arguments for a (limited) strict-

liability reading do not convince us. The government seeks to

draw a contrast between § 924(c)(4)’s definition of

“brandish”—which explicitly includes an intent

requirement—and the absence of such a provision for

“discharge.” We don’t find the proposed inference

compelling. There is a very reasonable explanation for

Congress’s decision to include a definition of one term but not

the other. The statute’s definition of “brandish” is broader

than the dictionary definition, as it (Congress’s definition)

includes uses of a gun invisible to the person threatened so

long as the perpetrator somehow makes its presence known.

Compare, e.g., WEBSTER’S II NEW RIVERSIDE DICTIONARY 89

(1984): (defining “brandish” to mean “[t]o wave or flourish

7

threateningly, as a weapon”); WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY, UNABRIDGED 268 (1981)

(defining “brandish” to mean (1) “to shake or wave (a

weapon) menacingly”; (2) “to exhibit or expose in an

ostentatious, shameless, or aggressive manner”). Having

embarked on a definition, the drafter thought it proper to

specify the required intent.

The government also relies on United States v. Harris,

959 F.2d 246 (D.C. Cir. 1992), where we analyzed a part of

§ 924(c)(1) (1988 ed. Supp. V) (replaced with § 924(c)(1)(B)

by Pub. L. 105-386, 112 Stat. 3469 (1998)) that imposes a 30-

year minimum when the weapon used is a machine gun.

Assuming that this created a sentencing factor, we found that

the government didn’t need to prove that the defendant knew

the precise nature of the weapon he used, reasoning that “there

does not seem to be a significant difference in mens rea

between a defendant who commits a drug crime using a pistol

and one who commits the same crime using a machine gun;

the act is different, but the mental state is equally

blameworthy.” 959 F.2d at 259. The Supreme Court later

construed the same provision (also in its pre-1998 form) and

found that it set out a separate offense rather than a sentencing

factor. Castillo v. United States, 530 U.S. 120 (2000). While

the Court didn’t address what a defendant must know about

his firearm, it did find the difference between carrying a pistol

and carrying a machine gun “great, both in degree and kind,”

id. at 126, a proposition somewhat undermining our analysis

in Harris.1 In any event, our Harris decision simply read the

1

Circuits have disagreed whether the revised machinegun

provision sets out a sentencing factor or a separate offense.

Compare United States v. Harris, 397 F.3d 404, 412-14 (6th Cir.

2005), with United States v. Gamboa, 439 F.3d 796, 810-11 (8th

Cir. 2006).

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statute as creating a penalty gradation based solely on the

hazard of the weapon itself (which in almost all instances

would likely be obvious to the defendant). That such a

calibration of penalties might be reasonable in that context

says little to support the rather anomalous pattern that would

flow from the government’s reading of § 924(c)(1)(A).

We note that in rejecting any intent requirement for the

discharge provision, the Tenth Circuit broadly reasoned that

because the two provisions penalizing brandishing and

discharging were sentencing factors rather than independent

offenses, “no mens rea [was] required.” Nava-Sotelo, 354

F.3d at 1206. But the proposition that the Constitution

imposes no such requirement (assuming its truth) responds

neither to our concern for disrupting § 924(c)’s apparent

structure nor to the presumption against strict liability in

criminal statutes and the rule of lenity, both of which apply

under Bifulco as much to penalties as to the substantive

offense.

Having concluded that the discharge must be intentional,

we must consider the character of the necessary intent. Like

the Ninth Circuit in Dare, we find that, to trigger the

minimum sentence under the discharge provision, the

defendant must have acted with “general intent.” 425 F.3d at

641 n.3. See, e.g., United States v. Lewis, 780 F.2d 1140,

1142-43 (4th Cir. 1986) (“In the absence of an explicit

statement that a crime requires specific intent, courts often

hold that only general intent is needed.”). “A general intent

crime is one in which an act was done voluntarily and

intentionally, and not because of mistake or accident.” United

States v. Blair, 54 F.3d 639, 642 (10th Cir. 1995) (emphasis

added); see also United States v. Rhone, 864 F.2d 832, 834

(D.C. Cir. 1989) (describing standard jury instruction

regarding general versus specific intent). The exclusion of

mere accident appears to parallel the Model Penal Code’s

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formula for filling statutory gaps in intent: “When the

culpability sufficient to establish a material element of an

offense is not prescribed by law, such element is established if

a person acts purposely, knowingly or recklessly with respect

thereto.” MODEL PENAL CODE § 2.02(3) (1985); see also id. at

228 (Explanatory Note to § 2.02(3)) (observing “a rough

correspondence” between the default rule requiring purpose,

knowledge, or recklessness and the common law requirement

of “general intent”).

There is no evidence that in discharging his firearm

Brown acted purposely or knowingly. Nor can his conduct

with respect to the discharge be viewed as “reckless.”

Obviously anyone who robs a bank and brandishes a firearm

has already taken risks that themselves render his overall

conduct reckless as the word is used in ordinary language or

in, say, MODEL PENAL CODE § 2.02(2)(c) (“A person acts

recklessly with respect to a material element of an offense

when he consciously disregards a substantial and unjustifiable

risk that the material element exists or will result from his

conduct.”). But if that intent sufficed for the discharge

provision, the separate mens rea requirement for the discharge

provision would be meaningless or virtually so. Cf. United

States v. Ray, 21 F.3d 1134, 1139 (D.C. Cir. 1994) (“It is not

the danger associated with bank robberies that warrants

enhanced punishment under [18 U.S.C.] § 2113(d). It is the

increased danger caused by robberies committed in a certain

way.”). As there is no evidence that the discharge itself arose

out of any act manifesting additional disregard of others’

safety, we reverse the district court’s sentence with respect to

§ 924(c)(1)(A)(iii) and remand for resentencing under

§ 924(c)(1)(A)(ii).

Brown raises two other substantive arguments, but neither

is persuasive. First, Brown’s appellate counsel argues that his

trial counsel furnished ineffective assistance of counsel by not

10

trying to suppress evidence of a nonverbal “statement” Brown

made to a police officer indicating the location of his gun

shortly after his arrest outside the bank. None of the officers

had yet read Brown his rights. But the police officer’s

inquiries fall squarely within the public-safety exception to

Miranda v. Arizona, 384 U.S. 436 (1966), recognized by the

Supreme Court in New York v. Quarles, 467 U.S. 649 (1984).

Failure to raise a meritless claim is not evidence of ineffective

assistance. See United States v. Holland, 117 F.3d 589, 594

(D.C. Cir. 1997).

Second, Brown argues that the district court abused its

discretion by permitting the government’s introduction of

physical evidence found with Brown at the time he was

arrested—including a gun and a bag containing approximately

$23,000 in cash—without a proper evidentiary foundation. In

fact, witnesses testified to every step of the evidence’s

custody, from its original acquisition at the crime scene to its

transmission to FBI agents and its handling by those agents.

* * *

Brown was sentenced on November 1, 2004—after the

Supreme Court’s decision in Blakely v. Washington, 542 U.S.

296 (2004), but before its decision in United States v. Booker,

543 U.S. 220 (2005). During the hearing, the district court

judge proposed to adopt three alternative sentences: one

treating the Sentencing Guidelines as mandatory, a second

treating the Guidelines as mandatory but applying only those

enhancements that reflected facts found by the jury, and a

third treating the Guidelines as advisory. The second and

third options were designed, plainly, to comply with different

remedies that the Supreme Court might choose if it were to

extend Blakely to the Sentencing Guidelines. As we now

know, the Court chose substantially the third. Booker, 543

11

U.S. at 245-46, 259. But the district court judge never

calculated the third variant; Brown’s counsel indicated she

wasn’t ready to proceed with argument under such an

approach.

The government concedes that the first sentence reflected

constitutional Booker error and that, because the constitutional

error was preserved, our review is for harmless error—that is,

we ask whether it appears, “beyond a reasonable doubt, that

the error complained of did not contribute to the sentence

obtained.” See United States v. Simpson, 430 F.3d 1177, 1184

(D.C. Cir. 2005) (quoting Chapman v. California, 386 U.S.

18, 24 (1967)) (internal brackets deleted). It points out that

the district court judge chose the longest sentence in the

ranges he found applicable, and cites the district judge’s

statement that “it could be a much more serious sentence

without [G]uidelines,” and other language to like effect. But

other statements of the district judge cut the other way. In

particular, he acknowledged the existence of multiple

potentially mitigating circumstances—which he was largely

disabled from considering under a mandatory Guidelines

regime:

I understand the family difficulties he’s had and the loss

of family members and illnesses among his family and

his wife’s family and him having had psychiatric

treatment and medications in the past.

As we noted in United States v. Gomez, “[i]f Booker’s

rendering the Guidelines discretionary means anything,” it

must give district court judges greater latitude in assessing

potentially mitigating factors than they had under the

Sentencing Guidelines. 431 F.3d 818, 825 (D.C. Cir. 2005).

Thus the court’s signals appear mixed—on one hand the

district judge suggests that Brown was lucky to get the benefit

of the Guidelines’ limits, and on the other he recognizes that

12

the Guidelines restricted consideration of some mitigating

factors. On this record we find it hard to say that the

government carried its burden of showing that the error was

harmless, and remand for resentencing on the armed-robbery

and felon-in-possession convictions.

* * *

The judgment is vacated and the case remanded for

resentencing.

So ordered.