United States v. Williams

Opinions of the United

2003 Decisions States Court of Appeals

for the Third Circuit

9-18-2003

USA v. Williams

Precedential or Non-Precedential: Precedential

Docket No. 02-2928

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PRECEDENTIAL

Filed September 18, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 02-2928 and 02-3109

UNITED STATES OF AMERICA

v.

GEORGE KEITH WILLIAMS, JR.,

a/k/a KEVIN RICHARDSON

Appellant No. 02-2928

UNITED STATES OF AMERICA

Appellant No. 02-3109

v.

GEORGE KEITH WILLIAMS, JR.,

a/k/a KEVIN RICHARDSON

Appeals from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 00-cr-00164)

District Judge: Honorable William L. Standish

Argued May 13, 2003

Before: RENDELL, SMITH and ALDISERT, Circuit Judges

(Filed September 18, 2003)

2

Karen S. Gerlach [ARGUED]

Office of the Federal Public Defender

1001 Liberty Avenue

1450 Liberty Center

Pittsburgh, PA 15222

Counsel for Appellant/Cross Appellee

Bonnie R. Schlueter [ARGUED]

James H. Love

Office of the United States Attorney

633 U.S. Post Office and Courthouse

Pittsburgh, PA 15219

Counsel for Appellee/Cross Appellant

OPINION OF THE COURT

RENDELL, Circuit Judge.

George Keith Williams appeals his conviction for carrying

a firearm in violation of 18 U.S.C. § 924(c). The Government

produced evidence that Williams threw the firearm from his

vehicle during a police chase following a bank robbery.

Williams challenges both the sufficiency of the evidence

supporting his conviction and the District Court’s

instructions to the jury. The Government cross-appeals,

challenging the District Court’s decision to grant Williams

an offense-level reduction for acceptance of responsibility as

to a separate count. We will affirm the District Court in all

respects.

I. Background

The facts established at trial, taken in the light most

favorable to the Government, are straightforward. On

August 16, 2000, Williams, dressed as a woman, entered

the Parkvale Savings Bank in North Huntingdon,

Pennsylvania, and handed a brown bag to the bank teller

together with a note that read: “Give me your money. I

don’t want to hurt you.” The teller gave Williams $822,

including “bait” money, which triggered an alarm. Williams

then fled from the scene in a stolen car and led police on

a seven-mile high-speed chase through residential

3

neighborhoods. After colliding with multiple vehicles,

Williams ultimately jumped out of the moving car just

before it crashed into the side of an apartment building.

Before he exited the car, Williams threw a black metallic

object out of the window. Williams fled on foot, but was

apprehended by police shortly thereafter. While

investigating the scene, police officers found a loaded gun

ten feet from the getaway car.

Although Williams initially denied involvement in the

bank robbery — and explained his flight from the police as

a reaction to having an illegal gun in the car — he was

apprehended with a paper bag containing $822, including

the “bait” money. The police found a wig and other clothing,

in the car, matching the description of that worn by the

robber, and they also found Williams’s fingerprints on the

bank demand note. Regarding the gun, an investigating FBI

agent testified that “[Williams] had said he had bought the

gun on the street obviously before and that he carried it for

protection . . . . [H]e was in another neighborhood other

than his own so he had carried it the night before so he

had had it with him.”

A grand jury indicted Williams on two counts, charging

him with (1) bank robbery by force and intimidation in

violation of 18 U.S.C. § 2113(a), and (2) carrying a firearm

during and in relation to a crime of violence and possessing

a firearm in furtherance of that crime of violence in

violation of 18 U.S.C. § 924(c). Williams pled guilty to the

§ 2113(a) charge, but went to trial on the § 924(c) charge.

The first trial ended in a mistrial due to a hung jury, but

on retrial the jury found Williams guilty. At sentencing, the

District Court, over the objection of the Government,

granted Williams’s request for an offense-level reduction for

acceptance of responsibility. The Court sentenced Williams

to 66 months on count one, and a consecutive term of 60

months on count two.

The District Court had jurisdiction pursuant to 18 U.S.C.

§ 3231, and we have jurisdiction pursuant to 18 U.S.C.

§ 1291. Williams makes four arguments on appeal: (1) the

evidence was insufficient to sustain a conviction under

§ 924(c); (2) the District Court incorrectly instructed the

jury that a gun is “carried” in violation of § 924(c) if it

4

merely “emboldens” the defendant during the escape;

(3) the District Court incorrectly instructed the jury that a

gun is “possessed” in violation of § 924(c) if it merely

“emboldens” the defendant during the escape; and (4) the

District Court incorrectly instructed the jury as to what

satisfies the “carry” elements under § 924(c). As noted, the

Government cross-appeals, arguing that the District Court

erred in granting Williams an offense-level reduction for

acceptance of responsibility under § 3E1.1 of the

Sentencing Guidelines.

II. Sufficiency of the Evidence

We first consider whether there is sufficient evidence to

sustain a conviction under 18 U.S.C. § 924(c). When

reviewing whether the evidence was sufficient to convict,

“[w]e must consider the evidence in the light most favorable

to the government and affirm the judgment if there is

substantial evidence from which any rational trier of fact

could find guilt beyond a reasonable doubt.” United States

v. Brown, 3 F.3d 673, 680 (3d Cir. 1993) (internal quotation

marks and citation omitted).

Section 924(c) provides in pertinent part:

[A]ny person who, during and in relation to any crime of

violence or drug trafficking crime . . . for which the

person may be prosecuted in a court of the United

States, 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 or drug trafficking crime — [be sentenced to a

certain number of years depending on the facts of the

crime] . . . .

18 U.S.C. § 924(c) (emphasis added). Courts have noted

that § 924(c) has three alternative prongs: the “use” prong,

the “carry” prong, and the “possession” prong. See

Muscarello v. United States, 524 U.S. 125, 136 (1998)

(discussing the “use” and “carry” prongs); United States v.

Loney, 219 F.3d 281, 287 (3d Cir. 2000) (discussing the

“use,” “carry,” and “possession” prongs). The District Court

charged the jury in the alternative, under the “carry” and

5

“possession” prongs. The jury returned a general guilty

verdict.

Williams presents various technical arguments based on

the elements of § 924(c). His main argument is that there

was not sufficient evidence for the jury to find that he

either “carried” or “possessed” a gun. In the alternative, he

urges that there was not sufficient evidence to find that he

either carried a gun “during and in relation to” a crime of

violence or possessed a gun “in furtherance of ” a crime of

violence as required by the statute. We will first address his

arguments as to the “carry” prong.

We have little difficulty rejecting Williams’s argument that

there was not sufficient evidence for the jury to have

concluded that Williams “carried” a gun. In Muscarello, the

Supreme Court explained that “carries” in § 924(c) is not

limited to the carrying of firearms directly on the person. Id.

at 126-27. Rather, the Court held that, “[the term] also

applies to a person who knowingly possesses and conveys

firearms in a vehicle, including in the locked glove

compartment or trunk of a car, which the person

accompanies.” Id.; see also United States v. Eyer, 113 F.3d

470, 476 (3d Cir. 1997) (stating that the presence of a

loaded gun in a car’s front console constituted “carrying”

under § 924(c)). This explication certainly encompasses the

situation here, where there was sufficient evidence from

which the jury could find that Williams carried a gun in the

getaway car during his flight from the bank. Not only did he

tell police officers that he ran from them because he had an

illegal gun, but a pursuing police officer testified to seeing

Williams throw a black metallic object from his car, and a

gun was subsequently found ten feet away from the car.

Williams’s alternative argument as to the “carry” prong,

however, cannot be rejected so easily. He contends that,

even if he “carried” the firearm, the evidence did not

establish that he carried it “during and in relation to” a

crime of violence — as further required by § 924(c) — given

that there is no evidence that he had the gun with him in

the bank when he committed the robbery. Understanding

that the underlying crime to which Williams pled guilty,

bank robbery under the first paragraph of § 2113(a),1 is a

1. Section 2113(a) provides:

Whoever, by force and violence, or by intimidation, takes or

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crime of violence, we must only determine whether

Williams’s carrying of the firearm was “during and in

relation to” the bank robbery. See United States v. Johnson,

962 F.2d 1308, 1312 (8th Cir. 1992).

We begin with the “in relation to” requirement of the

“carry” prong. See 18 U.S.C. § 924(c). As the Supreme Court

noted in Smith v. United States, 508 U.S. 223, (1993),

regarding § 924(c), “[t]he phrase ‘in relation to’ is

expansive.” Id. at 237. In Smith, the Court used the

dictionary to define “in relation to” as: “ ‘with reference to’

or ‘as regards.’ ” Id. Though the Court declined to chart the

specific boundaries of that definition, it stated that, in order

to be carried “in relation to” the offense, the presence of the

gun could not be the result of accident or coincidence, and

the gun must have had “some purpose or effect” as to, and

must have at least “ ‘facilitate[d], or [had] the potential of

facilitating,’ ” the underlying offense. Id. at 238 (quoting

United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985)

(Kennedy, J.)).

In United States v. Warwick, 167 F.3d 965 (6th Cir.

1999), the Court of Appeals for the Sixth Circuit examined

the breadth of the phrase “in relation to” in light of Smith.

The court stated that, because of the broad interpretation

attempts to take, from the person or presence of another, or obtains

or attempts to obtain by extortion any property or money or any

other thing of value belonging to, or in the care, custody, control,

management, or possession of, any bank, credit union, or any

savings and loan association; or

Whoever enters or attempts to enter any bank, credit union, or any

savings and loan association, or any building used in whole or in

part as a bank, credit union, or as a savings and loan association,

with intent to commit in such bank, credit union, or in such savings

and loan association, or building, or part thereof, so used, any

felony affecting any such bank or such savings and loan association

and in violation of any statute of the United States, or any larceny

—

Shall be fined under this title or imprisoned not more than twenty

years, or both.

18 U.S.C. § 2113(a).

7

afforded to § 924(c) by the Supreme Court, instead of

focusing on the defendant’s intentions in pursuing the

underlying offense, a court should

examine the ‘totality of the circumstances surrounding

the commission of the crime: the emboldened sallying

forth, the execution of the transaction, the escape, and

the likely response to contingencies that might have

arisen during the commission of the crime’. . . . Thus,

a conviction under § 924(c)(1) will withstand appellate

review if the evidence is sufficient to support a finding

that the defendant intended to have the firearm

available for use during or immediately following the

transaction, or if it facilitated the crime . . . .

Id. at 971 (quoting and citing United States v. Brown, 915

F.2d 219, 226 (6th Cir. 1990)). We find this assessment

persuasive.

In light of the broad reading afforded to § 924(c) by the

courts, the requirements of the “in relation to” clause are

clearly satisfied in this case. Williams admitted to putting a

firearm in his car the night before the robbery; the gun was

within reach during his flight from the bank; and he

undoubtedly was aware of its presence in the car. Even

crediting Williams’s explanation that he had put the gun in

the car for protection in a strange neighborhood the night

before the robbery, the jury could have concluded that the

presence of the gun was not the result of accident or

coincidence, and that it had the “potential of facilitating”

the bank robbery. Although Williams did not actively

engage the firearm, there are sufficient facts from which the

jury could infer that his carrying of a loaded gun within

reach in the getaway car occurred “in relation to” the bank

robbery.

Williams next contends that, even if the firearm was

“carried in relation to” the bank robbery, it was not carried

“during” the bank robbery as § 924(c) also requires,

because the escape or the “taking away” was not part of the

bank robbery itself.2 As noted, there was sufficient evidence

2. As we discuss more fully later below, Williams also challenges the

District Court’s charge to the jury that escape is part of bank robbery.

8

only for the jury to have found at trial that Williams

“carried” the gun while escaping in the getaway car.

Therefore, the issue of whether that part of the incident

occurred “during” the bank robbery is dispositive.

Our case law has consistently treated escape as part and

parcel of a bank robbery, including federal bank robbery as

defined in 18 U.S.C. § 2113 (the offense that underlies

Williams’s § 924(c) charge). For instance, in United States v.

Bamberger, 460 F.2d 1277 (3d Cir. 1972), we found that a

shooting that occurred a few blocks away from a bank

robbery was “sufficiently related in time and circumstances

to the actual robbery” to be part of the robbery itself. Id. at

1278. Although the defendant in that case was charged

with aiding and abetting, the language of our opinion

regarding the duration of the offense swept broadly and was

not restricted to an aiding and abetting scenario.3 We later

relied on Bamberger in Government of the Virgin Islands v.

Dowling, 633 F.2d 660 (3d Cir. 1980), where we concluded

that assaults occurring during “hot pursuit” of a robbery

occur “in committing” the crime. Id. at 668-69.

Consequently, we indicated that the assaults involved in

that case — “three or more bursts of gunfire [issued from

the getaway car after leaving the bank], separated in time,

[which] occurred almost immediately after the robbery in

the course of a ‘hot pursuit’ ” fell “within the scope of the

federal Bank Robbery Act, 18 U.S.C. § 2113(d),” and thus

within § 2113(a) as well.4 Id. at 668-69.

3. The “aiding and abetting” statute provides in pertinent part:

Whoever commits an offense against the United States or aids,

abets, counsels, commands, induces or procures its commission, is

punishable as a principal.

18 U.S.C. § 2(a).

4. Section 2113(d) provides:

Whoever, in committing, or in attempting to commit, any offense

defined in subsections (a) and (b) of this section, assaults any

person, or puts in jeopardy the life of any person by the use of a

dangerous weapon or device, shall be fined under this title or

imprisoned not more than twenty-five years, or both.

18 U.S.C. § 2113(d). Though Bamberger and Dowling referred to

§ 2113(d) — and not § 2113(a), the offense underlying Williams’s § 924(c)

charge — the distinction is of no consequence here. Section 2113(a) is a

lesser-included offense of § 2113(d). United States v. Beckett, 208 F.3d

140, 149 (3d Cir. 2000); see also Dowling, 633 F.2d at 668.

9

The other courts of appeals that have considered whether

escape is a part of the bank robbery also have determined

that it is. See, e.g., United States v. Ashburn, 20 F.3d 1336,

1341 (5th Cir. 1994) (noting, with approval, that “many

courts . . . have found that the escape phase of the robbery

can be considered part of the offense of bank robbery under

various circumstances.”), relevant part reinstated, 38 F.3d

803 (en banc); United States v. Dinkane, 17 F.3d 1192,

1200 (9th Cir. 1994) (noting that the escape phase is a part

of bank robbery); United States v. Muhammad, 948 F.2d

1449, 1456 (6th Cir. 1991) (“As the crime of bank robbery

cannot be completed without some form of flight or

attempted flight, the crime is more naturally understood to

include the act of fleeing and the immediate consequences

of such flight.”); United States v. McCaskill, 676 F.2d 995,

1000 (4th Cir. 1982) (concluding that the escape phase is

a part of the bank robbery); United States v. Willis, 559

F.2d 443, 444 (5th Cir. 1977) (“[T]he robbery is not a

consummate transaction until the immediate removal

phase comes to a halt . . . .”); United States v. Von Roeder,

435 F.2d 1004, 1010 (10th Cir. 1970) (“[T]he escape phase

of a crime is not . . . an event occurring ‘after the robbery.’

It is part of the robbery.” (internal quotation marks and

citation omitted)), vacated on other grounds, Schreiner v.

United States, 404 U.S. 67 (1971); see also United States v.

Barlow, 470 F.2d 1245, 1252-53 (D.C. Cir. 1972) (“The

crime of larceny obviously continues as long as the

asportation continues . . . .”).

In fact, in considering the specific issue before us, the

Courts of Appeals for the Second and Eighth Circuits have

determined that flight from a bank robbery is part of the

bank robbery crime for the purposes of upholding a § 924(c)

conviction. As the Eighth Circuit reasoned:

A bank robbery does not necessarily begin or end at

the front doors of the bank . . . . It simply cannot be

gainsaid that reasonable jurors could conclude that the

presence of a loaded shotgun in the getaway car from

a bank robbery in some way effectuates the escape and

thereby the robbery — if by nothing more than the

emboldening of the perpetrators.

10

United States v. Pate, 932 F.2d 736, 738 (8th Cir. 1991);

see also United States v. Reid, 517 F.2d 953, 965 (2d Cir.

1975) (concluding that the “escape phase” is part of the

bank robbery for purposes of § 924(c)).

Against this backdrop of overwhelming consensus, we

note that, as the Government advised at oral argument, in

United States v. Carter, 530 U.S. 255 (2000), the Supreme

Court held that the strict elements of a federal bank

robbery offense under 18 U.S.C. § 2113(a) do not include

“taking away.” Id. at 262. In Carter, the Supreme Court

examined whether 18 U.S.C. § 2113(b) was a lesser

included offense of § 2113(a) and thus whether Carter was

entitled to a jury instruction on the lesser included offense.

Id. at 258-59. The Court concluded that § 2113(b) was not

a lesser included offense for a number of reasons, one of

which was that § 2113(b) included “taking away” as an

element, but § 2113(a) did not. Id. Given that Williams

carried the gun only as the stolen property was being

“taken away” during the escape phase of the bank robbery,

does Carter dictate that we conclude that the gun here was

not carried “during” the bank robbery?

Were we to take a “categorical approach” to the “during”

requirement of § 924(c) here, we might find Carter, albeit

addressing a different issue, controlling because it

articulates the elements of the underlying conduct — bank

robbery under 18 U.S.C. § 2113(a) — to which Williams

pled guilty. “The categorical approach requires the court to

look only to the fact of conviction and the statutory

definition of the prior offense” and not to the facts of the

case. United States v. Jones, 332 F.3d 688, 691 (3d Cir.

2003). Thus, because the elements of § 2113(a) do not

include the “taking away,” it could be argued that the

categorical approach would require us to conclude that the

carrying of the gun did not occur “during” the bank

robbery.

But we think resort to the categorical approach is not

necessary or advisable here. In the statutory context, use of

a categorical approach has been confined mainly to

predicate offenses for purposes of determining whether the

offense qualifies for a sentencing enhancement provision.

For instance, in Taylor v. United States, 495 U.S. 575, 589,

11

600-02 (1990), the Court applied the categorical approach

to determine whether the defendant’s prior convictions for

“burglary” under state law qualified as a “violent felony”

under 18 U.S.C. § 924(e)(2)(B) and thus could be used for

sentencing-enhancement purposes under 18 U.S.C.

§ 924(e)(1). In United States v. Richardson, 313 F.3d 121,

122 (3d Cir. 2002), we applied it to determine whether the

defendant had used a weapon in prior juvenile offenses,

also for the purposes of determining whether those offenses

could be used to enhance a sentence. This is consistent

with how we have employed the approach elsewhere. See,

e.g., Jones, 332 F.3d at 693-94 (applying the categorical

approach to determine whether a prior juvenile

adjudication constituted a “violent felony” under the Armed

Career Criminal Act, 18 U.S.C. § 924(e)); Francis v. Reno,

269 F.3d 162, 171 (3d Cir. 2001) (using the categorical

approach to determine if a conviction for vehicular

homicide fell within the meaning of a “crime of violence”

under 18 U.S.C. § 16(b)). Likewise, in Carter, the analysis of

whether 18 U.S.C. § 2113(b) was a lesser included offense

of 18 U.S.C. § 2113(a) necessitated and turned on a

matching of the elements of each offense. 530 U.S. at 260-

62 (citing the holding of Schmuck v. United States, 489 U.S.

705, 716 (1989)). Thus, the Court focused on the elements

needed to prove bank robbery under § 2113(a). Id. at 267-

74.

The issue here is altogether different. In Carter, the Court

did not speak to, let alone anticipate, this issue, and there

is no indication that the Court meant to extend its holding

in Carter beyond the scope of the precise question before it.

The Court was concerned with what § 2113(a) “required”

and determined that it did not require taking away; it was

not concerned with the duration of the offense or with

whether the taking away may be considered a part of the

robbery. Id. at 258, 261, 272. Here, we are not called upon

to determine whether a crime “fits” within a category of

offenses, or within the definition of a specific word or

phrase. Rather, we must decide if, under the

circumstances, a gun was carried “during and in relation

to” a crime of violence. We view a reasonable reading of

“during and in relation to” a crime of violence as requiring

a common sense, temporal approach to the specific facts,

12

rather than a categorical approach. Therefore, we decline to

look only at the offense under § 2113(a) to determine

whether Williams carried the gun “during” the crime.

That § 924(c) should be interpreted to encompass acts

committed during the escape phase of a bank robbery is

also supported by the legislative history of § 924(c), other

Supreme Court precedent, the ordinary meaning of

“robbery,” leading treatises, and the Model Penal Code.

First, the provision’s chief legislative sponsor indicated the

broad scope of the statute. Specifically, he stated that the

purpose of the provision was to “persuade the man who is

tempted to commit a Federal felony to leave his gun at

home.” 114 Cong. Rec. 22231 (1968) (Rep. Poff) (cited in

Muscarello, 524 U.S. at 132). And, in discussing the scope

of the “carry” prong, the Supreme Court has noted that,

although the “during and in relation to” phrase would

provide a limiting effect to that prong, “Congress added

[the] words [during and in relation to] in part to prevent

prosecution where guns ‘played’ no part in the crime.”

Muscarello, 524 U.S. at 137. Here, the jury could have

inferred from the presence of a loaded firearm within

Williams’s reach in the getaway car that he at least carried

the gun in the car to protect the proceeds of the bank

robbery. It follows that the jury could have found that the

firearm had a “part” in the bank robbery, even though there

is no evidence that Williams had it with him in the bank.

Moreover, just as the Supreme Court in Muscarello

looked at the ordinary meaning of the word “carry” in

determining its scope, we look to the ordinary meaning of

the word “robbery.” See Muscarello, 524 U.S. at 127-28. We

believe that, under its ordinary meaning, a bank robbery is

not concluded when the offender pockets the goods, but

continues to the point where the robber has removed and

relocated the goods. This “ordinary meaning” is not only

consistent with the overwhelming agreement of courts of

appeals, as we discussed above, but is also consistent with

at least two of the leading criminal law treatises, both of

which note that the “taking away” or the “carrying away” is

normally considered to be a part of robbery. See Charles E.

Torcia, Wharton’s Criminal Law § 469 (14th ed. & Supp.

1995); Wayne R. LaFave, 3 Substantive Criminal Law § 20.3

13

(2d ed. 1999). Likewise, the Model Penal Code states that

an individual commits robbery if “in the course of

committing a theft” he inflicts or threatens injury, or

commits or threatens to commit a felony, which the Code

clarifies by stating that: “[a]n act shall be deemed ‘in the

course of committing a theft’ if it occurs in an attempt to

commit theft or in flight after the attempt or commission.”

Model Penal Code § 222.1(1) (2002) (emphasis added).

Lastly, we note that our interpretation avoids undesirable

results that would flow from finding that flight is not part

of a robbery. For instance, if flight were not included, we

would have to find an arbitrary point delineating when and

where the crime ends. Would the crime end the instant the

bank robber took the money from the teller’s hands? Would

it end the instant the robber stepped outside the door of

the bank? Or, rather, would it end when he stepped into

the getaway car or began running? It would defy common

sense to suggest that Congress meant to provide that an

individual who quietly and peacefully demands money at a

bank counter, but has a gun hidden on his person, is

covered under § 924(c), but an individual who goes on a

shooting spree after leaving the bank in order to effectuate

the robbery is not. Obviously, escape does end at some

point, such that the concept of “during and in relation to”

will have some boundaries as a matter of common sense.

But we believe that it is a fact-based inquiry, and, in light

of the immediacy of Williams’s apprehension and the

weapon’s discovery, we need not draw that line here. See

Bamberger, 460 F.2d 1277, 1278-79 (“While there must of

course come a point when the statute no longer covers the

activities of a bank robber, we think that point was not

reached here.”).

Accordingly, we conclude that flight may be considered a

part of a bank robbery under § 924(c), under certain

circumstances, and that this is one of those circumstances.

Even though Williams “had committed all elements

necessary to constitute an indictable offense insofar as he

personally was concerned[,] . . . he apparently considered

that further asportation was necessary in order to secure

the fruits of the crime.” Barlow, 470 F.2d at 1251-52.

Therefore, “[t]he crime itself was incomplete in the sense

14

that the actual offense set in motion by [him] was still

progressing and had not been terminated or finished.” Id. at

1252. Under these facts, there is sufficient evidence from

which the jury could have found beyond a reasonable doubt

that Williams’s flight in this case — which was temporally

and proximately related to the bank robbery — was

sufficiently related to the robbery so that Williams was

carrying the gun “during” the robbery.5

Because we find the evidence sufficient to affirm his

conviction under the “carry” prong of § 924(c), we need not

address the merits of his argument with regard to the

“possession” prong. See Griffin v. Turner, 502 U.S. 46, 60

(1991) (concluding that a reviewing court does not have

grounds to reverse a conviction where the evidence is

insufficient to support a conviction on one count, but is

sufficient with regard to an alternative count, and it is

unclear on which one the jury convicted); United States v.

Morris, 977 F.2d 617, 620 (D.C. Cir. 1992) (stating that

where the jury is charged under two prongs of § 924(c) and

“the jury returned a general verdict, we must affirm if the

evidence was sufficient to support either theory”).

III. Jury Instructions

We next address Williams’s arguments regarding the

District Court’s instructions to the jury. He argues that the

District Court incorrectly instructed the jury that: (1) a gun

is “carried” in violation of § 924(c) if it merely “emboldens”

5. Williams also argues that the District Court incorrectly instructed the

jury that escape is part of bank robbery. The jury instruction provided

in pertinent part:

[A] bank robbery does not necessarily begin or end at the front doors

of the bank. The escape phase of a bank robbery is not an event

occurring after the bank robbery. Rather, the escape phase of a

bank robbery is part of the robbery. The escape phase of a bank

robbery extends at least to the immediate pursuit of a defendant

following his or her physical departure from the bank.

Given our conclusion that the escape phase may be considered a part of

the crime of bank robbery for the purposes of § 924(c), it follows that we

find there was no error in the trial judge’s instruction regarding the

duration of the bank robbery.

15

the defendant during his escape; (2) a gun is “possessed” in

violation of § 924(c) if it merely “emboldens” the defendant

during his escape; and (3) the “carry” prong of § 924(c) can

be satisfied by “constructive possession.”6 We conclude that

the District Court did not commit reversible error.

We review de novo the District Court’s interpretation of

the statutory requirements and whether the District Court

correctly charged the jury. United States v. Urban, 140 F.3d

6. While in Part II we were only required to address the “carry” prong of

§ 924(c), given that there we were dealing with a claim of insufficiency of

the evidence, we must now deal with claims of legal error, and thus, we

will address Williams’s arguments with regard to both prongs. See

Griffin, 502 U.S. at 55-56. In Griffin, the Supreme Court declined to

overrule Yates v. United States, 354 U.S. 298 (1957), in which the Court

had refused to uphold convictions of conspiracy where one of the

possible bases of conviction was legally inadequate. 502 U.S. at 55-56.

The Court in Griffin explained the distinction in treatment between

insufficient evidence and legal error by stating:

Jurors are not generally equipped to determine whether a particular

theory of conviction submitted to them is contrary to law . . . .

When, therefore, jurors have been left the option of relying upon a

legally inadequate theory, there is no reason to think that their own

intelligence and expertise will save them from that error. Quite the

opposite is true, however, when they have been left the option of

relying upon a factually inadequate theory, since jurors are well

equipped to analyze the evidence.

502 U.S. at 59. In United States v. Syme, 276 F.3d 131 (3d Cir. 2002),

we concluded that “neither the indictment nor the District Court’s

instructions contained a ‘mistake about the law’ . . . that, under Griffin,

would require reversing the counts in question.” Id. at 148. As we stated:

[I]f the evidence is insufficient to support a conviction on one

alternative theory in a count but sufficient to convict on another

alternative theory that was charged . . . in the same count, then a

reviewing court should assume that the jury convicted on the

factually sufficient theory and should let the jury verdict stand . . . .

However, under Griffin, if one of two or more alternative theories

supporting a count of conviction is either (1) unconstitutional, or (2)

legally invalid, then the reviewing court should vacate the jury

verdict and remand for a new trial without the invalid or

unconstitutional theory.

Id. at 144 (citations omitted).

16

229, 231-32 (3d Cir. 1998). We review a court’s choice of

wording for abuse of discretion. United States v. Goldblatt,

813 F.2d 619, 623 (3d Cir. 1987). As we stated in Goldblatt:

It is well settled that a single jury instruction may not

be evaluated in artificial isolation; rather, it must be

evaluated in the context of the overall charge . . . . A

trial which culminates in a judgment of conviction is

the combined result of witnesses’ testimony, counsels’

arguments, entry of exhibits into evidence and the

judge’s instructions to the jury. Thus, ‘the process of

instruction itself is but one of several components of

the trial which may result in a judgment the

conviction.’

Id. (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).

Williams’s first argument is that a gun is not carried in

violation of 18 U.S.C. § 924(c) if it merely “emboldens” an

individual during an escape. The charge to the jury

provided in pertinent part:

It is not sufficient to prove that the defendant carried

the weapon if all the government has proven is that the

firearm was transported in a vehicle in which the

defendant was riding. There must be proof that he

knew of the weapon’s presence and had the power and

intention to exercise control of the weapon so that it

was available for his use in the commission of the

crime if the need arose. A firearm is available for such

use in [sic] the defendant keeps the firearm available to

provide security for the robbery, its fruits or proceeds,

or to aid or embolden the defendant in making his

escape.

In all, the charge to the jury with regard to the “carry”

prong constituted more than two pages of the District

Court’s instruction to the jury, and did not rest solely on

the word “emboldening.” In the instruction, the District

Court closely tracked the language invoked by the Supreme

Court in Smith. 508 U.S. at 237-38. Importantly, the trial

judge also instructed the jury that:

If you find that the defendant carried a firearm, you

must determine whether the carrying of the firearm

17

was during and in relation to the unarmed bank

robbery. During and in relation to means that the

firearm must have had some purpose or effect with

respect to the unarmed bank robbery. The firearm

must have at least facilitated or had the potential of

facilitating the unarmed bank robbery.

Given our standard of review, we need not determine

specifically whether “emboldening” standing alone would

have been reversible error. We look at the totality of the

District Court’s instruction, see Goldblatt, 813 F.2d at 623,

and in doing so here, find no reversible error. The trial

judge’s use of the word “emboldening” was included as part

of a thorough instruction that sufficiently tracked language

used by the Supreme Court.

Williams next argues that the trial judge incorrectly

charged the jury that “emboldening” satisfies the

“possession” prong of § 924(c). The instruction provided in

pertinent part:

In order to prove that the defendant possessed a

firearm in furtherance of the unarmed bank robbery,

the government must prove beyond a reasonable doubt

that the defendant had possession of the firearm and

that such possession was in furtherance of the

unarmed bank robbery. Possession means that the

defendant either had physical possession of the firearm

on his person or that he had dominion and control over

the place where the firearm was located and had the

power and intention to exercise control over the place

where the firearm was located. To possess a firearm in

furtherance of the unarmed bank robbery means that

the firearm helped forward, advance or promote the

commission of the crime. A firearm is possessed in

furtherance of an unarmed bank robbery if it is

possessed to provide security for the robbery, its fruits

or proceeds, or to aid or embolden the defendant in

making his escape.

As with the instruction surrounding the “carry” prong, the

charge further provided detailed direction that “[t]he mere

possession of the firearm at the scene of the crime is not

sufficient under this definition,” and that “[t]he firearm

18

must have played some part in furthering the crime in

order for this element to be satisfied.”

As there is little case law detailing the scope of the “in

furtherance of ” requirement of the “possession” prong, we

will follow the approach taken by the Supreme Court in

Smith and Muscarello, and look to the relevant dictionary

definitions. See Smith, 508 U.S. at 237-38; Muscarello, 524

U.S. at 128. Black’s Law Dictionary defines “furtherance” as

“act of furthering, helping forward, promotion,

advancement, or progress.” Black’s Law Dictionary 675 (6th

ed. 1990). Webster’s defines it as “a helping forward:

advancement, promotion.” Webster’s Third New

International Dictionary 924 (1993). And Webster’s defines

“embolden” as, “to impart boldness or courage to: instill

with boldness, bravery . . . .” Id. at 739. Given that in some

instances, “instill[ing] with boldness” could “help forward,”

“promote,” or “advance” a bank robbery — as the District

Court instructed — and given the overall instruction

provided by the District Court, we, again, find no reversible

error in this regard.

Williams’s third argument regarding the jury instructions

is that the District Court incorrectly instructed the jury

that the “carry” prong of § 924(c) can be satisfied based on

what is commonly termed “constructive possession.” See

United States v. Garth, 188 F.3d 99, 112 (3d Cir. 1999) (“A

person who, although not in actual possession, knowingly

has both the power and the intention at a given time to

exercise dominion or control over a thing, either directly or

through another person or persons, is then in constructive

possession.”). The relevant part of the court’s charge stated:

Possession means that the defendant either had

physical possession of the firearm on his person or

that he had dominion and control over the place where

the firearm was located and had the power and

intention to exercise control over the place where the

firearm was located.

As Williams did not object to this part of the instruction, we

review the charge for plain error, which requires that we

must find an error that is plain and that “affects

substantial rights” in order to grant relief.7 See United

7. Moreover, Fed.R.Crim.P. 52(b) leaves the decision to correct the

forfeited error within the sound discretion of the Court of Appeals, and

19

States v. Gambone, 314 F.3d 163, 183 (3d Cir. 2003); Fed.

R. Crim. P. 52. “ ‘Affected substantial rights’ in the context

of plain error review ‘in most cases . . . means that the

error must have been prejudicial: It must have affected the

outcome of the district court proceedings.’ ” United States v.

Knobloch, 131 F.3d 366, 370 (3d Cir. 1997) (quoting Olano,

507 U.S. at 734 (1993)). In light of the fact that, if the

Government’s version of events is credited, the obvious

location of the gun — namely, within his reach inside the

car — fit squarely within the “carry” prong under

Muscarello, we cannot conceive of how the charge given by

the District Court could have prejudiced Williams. We thus

no find no plain error in this aspect of the District Court’s

instruction.

IV. Cross-Appeal

The Government cross-appeals, arguing that the District

Court erred in granting Williams an offense-level reduction

for acceptance of responsibility under § 3E1.1 of the

Sentencing Guidelines. Williams received the acceptance of

responsibility reduction for pleading guilty to the bank

robbery charge under § 2113(a), in spite of the fact that he

contested the § 924(c) charge. The District Court’s “tentative

findings” are somewhat cursory, merely noting that the

Court came to that conclusion “[a]fter considering the

totality of the circumstances.”

The District Court referenced the applicable approach,

noting that where, as here, a defendant pleads guilty to

some counts but goes to trial on others, the Court must

assess the “totality of the circumstances” in deciding

whether to grant a reduction for acceptance of

responsibility. United States v. Cohen, 171 F.3d 796, 806

the court should not exercise that discretion unless “ ‘the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings.’ ” United States v. Retos, 25 F.3d 1220, 1229 (3d Cir. 1994)

(quoting United States v. Olano, 507 U.S. 725, 732 (1993)). “[I]t is the

rare case in which an improper instruction will justify reversal of a

criminal conviction when no objection has been made in the trial court.”

Henderson v. Kibbe, 431 U.S. 145, 154 (1977).

20

(3d Cir. 1999). While we review findings of fact for clear

error, and legal conclusions de novo, Cohen, 171 F.3d at

802, we are especially deferential to the sentencing court’s

assessment of whether the defendant accepted

responsibility. See U.S. Sentencing Guidelines Manual

§ 3E1.1, cmt. n.5 (2002) (“The sentencing judge is in a

unique position to evaluate a defendant’s acceptance of

responsibility. . . [,] the determination of the sentencing

judge is entitled to great deference on review.”).

The Government presents three arguments as to why the

District Court erred in granting an offense-level reduction,

which we address in turn. First, the Government contends

that District Court failed to take the totality of the

circumstances into account, but, instead, focused entirely

on the fact that Williams had pled guilty to the bank

robbery. Specifically, the Government argues that the

District Court failed to take into account that Williams

denied “relevant conduct” as defined in Application Note

1(a) of § 3E1.1, which provides in pertinent part that “a

defendant who falsely denies, or frivolously contests,

relevant conduct that the court determines to be true has

acted in a manner inconsistent with acceptance of

responsibility.” U.S. Sentencing Guidelines Manual § 3E1.1

cmt. n.1(a). The Government claims that the relevant

conduct Williams denied was that he carried a loaded gun

in the getaway car.

The Government’s reasoning is problematic both in its

interpretation of Application Note 1(a) and in its definition

of “relevant conduct.” The Government wrongly treats the

quoted language of Application Note 1(a) as establishing a

per se bar to the grant of a reduction for acceptance of

responsibility. Even if Williams “falsely denie[d], or

frivolously contest[ed], relevant conduct” as the Guidelines

requires, the Guidelines make clear that this is an

“appropriate consideration[ ]” for a court to take into

account “[i]n determining whether a defendant qualifies” for

the reduction, id., but not the only consideration. See U.S.

Sentencing Guidelines Manual § 3E1.1 cmt. n. 1(a) (stating

that a court is “not limited to” the listed considerations).

Further, it is a close question as to whether Williams’s

conduct even amounted to a “false denial” or a “frivolous

21

contest” as Application Note 1(a) requires. In addition, the

Government seems to ignore the fact that the District Court

specifically mentioned Williams’s “timely notification of [sic]

authorities of his intention to enter a plea of guilty on

Count One” — clearly an “appropriate consideration” under

the Application Note — as an additional factor it took into

consideration. See U.S. Sentencing Guidelines Manual

§ 3E1.1 cmt. n. 1(h).

What is more, it could be argued that the gun activity on

which Williams proceeded to trial was not “relevant

conduct” as that term is defined under the Guidelines. One

of the considerations in determining “relevant conduct” is

that it is conduct that affects the Guideline range. See U.S.

Sentencing Guidelines Manual § 3E1.1 cmt. n. 1(a) (stating

that “relevant conduct” is defined in § 1B1.3); see also

United States v. Wilson, 106 F.3d 1140, 1144 (3d Cir. 1997)

(referring to § 1B1.3(a) as the “standard of relevant conduct

. . . which applies to an offense requiring the grouping of

multiple counts”); United States v. Stephenson, 895 F.2d

867, 876 (2d Cir. 1990). But § 924(c) specifies a minimum

five-year term of imprisonment to run consecutively to any

other term. See 18 U.S.C. § 924(c)(1)(A)(I) & (D)(2). Under

§ 3D1.1,8 this made the § 924(c) charge not subject to

8. Section 3D1.1 reads:

(a) When a defendant has been convicted of more than one count,

the court shall:

(1) Group the counts resulting in conviction into distinct Groups

of Closely Related Counts (“Groups”) by applying the rules

specified in § 3D1.2.

(2) Determine the offense level applicable to each Group by

applying the rules specified in § 3D1.3.

(3) Determine the combined offense level applicable to all Groups

taken together by applying the rules specified in § 3D1.4.

(b) Exclude from the application of § § 3D1.2-3D1.5 any count for

which the statute (1) specifies a term of imprisonment to be

imposed; and (2) requires that such term of imprisonment be

imposed to run consecutively to any other term of imprisonment.

Sentences for such counts are governed by the provisions of

§ 5G1.2(a).

U.S. Sentencing Guidelines Manual § 3D1.1 (emphasis added).

22

grouping, which, in turn, rendered it not “relevant conduct”

for purposes of establishing Williams’s sentence. See U.S.

Sentencing Guidelines Manual § 3D1.1; see also

Stephenson, 895 F.2d at 876 (stating that an offense not

subject to grouping “is excluded from ‘relevant conduct’

under Section 1B1.3”).

Cohen is not to the contrary. In that opinion, we

discussed a situation similar to that presented here, calling

it an “unusual situation” where “the defendant has pleaded

guilty to some of the charges against him . . . while going

to trial on others.” Id. at 806. We stated that, in such a

case, “the trial judge ‘has the obligation to assess the

totality of the situation in determining whether the

defendant accepted responsibility.’ ” Id. at 806 (quoting

United States v. McDowell, 888 F.2d 285, 293 n.2 (3d Cir.

1989)). There, we determined that the District Court in

assessing the totality of the situation erred in granting an

acceptance of responsibility reduction because the

defendant had gone to trial on some of the counts that were

grouped for sentencing purposes. The District Court could

not have granted acceptance credit based on the guilty

pleas to some counts because the counts were grouped

before consideration of such credit, thus eliminating the

availability of the reduction for acceptance responsibility.

Id. (“Were the District Court able to grant a credit for . . .

the three . . . charges separately, then we would see no

error. However, the Guidelines do not allow for this because

multiple counts of conviction must be grouped before an

adjustment can be made for acceptance of responsibility.”).

That situation is not present here.

Next, the Government argues that the District Court

disregarded Application Note 2 of § 3E1.1 of the Sentencing

Guidelines, which states that a reduction should not be

granted for a defendant who proceeds to trial, denies

factual elements of guilt, and only admits guilt after a

conviction. U.S. Sentencing Guidelines Manual § 3E1.1

cmt. n.2. However, the District Court adjusted the offense

level only as to count one, and Williams only put the

Government to its burden of proof on count two. As noted

in Cohen, where the counts are not grouped and credit may

be granted to them separately, there is no error when the

23

District Court grants the reduction as to a count that the

defendant did not challenge. 171 F.3d at 806 (“Were the

District Court able to grant a credit for . . . the three . . .

charges separately, then we would see no error.”).

Therefore, Application Note 2 was inapplicable.

The Government’s third argument is equally unavailing.

It contends that, because the District Court erred in not

applying the obstruction of justice enhancement, it erred in

granting the acceptance of responsibility adjustment. That

is, in looking at the totality of the situation regarding

Williams’s acceptance of responsibility, the Government

asks us to consider Williams’s alleged efforts to obstruct

justice. This argument fails because the District Court

specifically found there was no obstruction of justice, and

the Government has not appealed that finding. We will not

now allow the Government to revisit that issue disguised in

a “totality of the circumstances” argument.

In sum, we find that, because Williams pled guilty to the

bank robbery charge, the reduction in his sentence for

acceptance of responsibility with regard to that count was

not improper, and, thus, we defer to the District Court.

* * *

Accordingly, we will affirm Williams’s conviction and not

disturb the sentence meted out by the District Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit