The opinion
Error: Expected the default config, but wasn't able to find it, or it isn't a Dictionary
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed September 5, 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)
On Petition for Rehearing
Before: RANDOLPH and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion PER CURIAM.
PER CURIAM: 18 U.S.C. § 924(c)(1)(A)(iii) calls for a 10-
year sentence where a gun, carried or used in furtherance of
certain offenses, is “discharged.” In our initial opinion in this
case we held that the provision creates liability only where the
defendant has acted intentionally, e.g., “purposely, knowingly
or recklessly.” United States v. Brown, 449 F.3d 154, 158-59
2
(D.C. Cir. 2006). We observed that there was “no evidence”
that the defendant “acted purposely or knowingly,” and also
said that his conduct with regard to the discharge could not
“be viewed as ‘reckless.’” Id. at 159. Accordingly we
vacated the sentence and remanded for resentencing under
§ 924(c)(1)(A)(ii) (providing a 7-year sentence for instances
in which the firearm is “brandished”). Id. at 159, 160.
The government has petitioned for rehearing, arguing that
we overlooked the principle that it is for the district court to
resolve factual issues relevant to sentencing. We agree—to
the extent of ordering a remand for the district court in the
first instance to apply the standard that we adopted. Cf.
United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). As
we originally noted, of course, the recklessness obviously
associated with the defendant’s commission of bank robbery,
and his carrying and brandishing of the weapon in the course
of the robbery, cannot suffice for a finding of the requisite
intent to discharge under § 924(c)(1)(A)(iii); otherwise “the
separate mens rea requirement for the discharge provision
would be meaningless or virtually so.” Brown, 449 F.3d at
159.
The case is remanded for further consideration in light of
the original opinion and this order.
So ordered.