Petition for Writ of Certiorari — United States v. Abreu

i) Supreme Court, US

y . : 3s i

99-67 F FILED

JUL 9 193

No. (See WOE

a |

In the Suprenwe Court of the United States

OCTOBER TERM, 1992

UNITED STATES OF AMERICA, PETITIONER

v.

ORESTES LUCIANO ABREU

UNITED STATES OF AMERICA, PETITIONER

JAMES DAVID THORNBRUGH

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KENNETH W. STARR

Solicitor General

Department of Justice

Washington, D.C. 20530

202) 514-2217

QUESTION PRESENTED

Whether a defendant who is convicted in a single

proceeding of multiple violations of 18 U.S.C. 924(c)

is subject to the statute’s provisions imposing a more

severe sentence for “second or subsequent’ convic-

tions.

(1)

TABLE OF CONTENTS

Page

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Statutory provision involved... Sener 2

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Reasons for granting the petition _.... Tiers Urictasaasoeancnon ces 7

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TABLE OF AUTHORITIES

Cases:

United States v. Bennett, 908 F.2d 189 (7th Cir.),

cert. denied, 111 S. Ct. 534 (1990) ......0 2... 7

United States v. Bernier, 954 F.2d 818 (2d Cir.

Neen ne ee 65 cesdassnavanstnohbbahinwennnnn 7

United States v. Deal, 954 F.2d 262 (5th Cir.

1992), petition for cert. pending, No. 91-8199... —s_ ‘7,8

United States v. Foote, 898 F.2d 659 (8th Cir.),

cert. denied, 111 S. Ct. 112 (1990) .....0..... 7

United States v. Jones, No. 91-1987 (8th Cir.

aE EET ES no 7

United States v. Nabors, 901 F.2d 1351 (6th

Cir.), cert. denied, 111 S. Ct. 192 (1990) _........ te 7

United States Vv. Rawlings, 821 F.2d 1543 (11th

Cir.), cert. denied, 484 U.S. 979 (1987) ........... 7

United States v. Raynor, 939 F.2d 191 (4th Cir.

et Ea 7

Statutes:

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-

690, § 6460(2) (A), 102 Stat. 4873 0... 2

Bp ares. ee) .............................- Ln, RE IE 4,5, 6,7

ioe ees ey Ca) .................................... lar RCN 2

18 U.S.C. 924(c) (1) (Supp. V 1987) —...... me 2

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Iu the Supreme Court of the linited States

OCTOBER ‘TERM, 1992

No.

UNITED STATES OF AMERICA, PETITIONER

”.

ORESTES LUCIANO ABREU

UNITED STATES OF AMERICA, PETITIONER

Vv.

JAMES DAVID THORNBRUGH

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the Tenth Circuit in these cases.

OPINIONS BELOW

The en hanc opinion of the court of appeals (App.,

infra, la-19a) and the panel opinions disposing of

respondents’ other claims (App., ‘nfra, 20a-44a, 45a-

62a) are not yet reported.

(])

9

JURISDICTION

The judgment of the en bane court of appeals was

entered on April 13, 1992. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Section 924(c)(1) of Title 18 of the U.S.C. cur-

rently provides in relevant part: '

Whoever, during and in relation to any crime of

violence or drug trafficking crime * * *, uses or

carries a firearm, shall, in addition to the pun-

ishment provided for such crime of violence or

drug trafficking crime, be sentenced to imprison-

ment for five years * * *. In the case of his sec-

ond or subsequent conviction under this subsec-

tion, such person shall be sentenced to imprison-

ment for twenty years * * *. Notwithstanding

any other provision of law, the court shall not

place on probation or suspend the sentence of

any person convicted of a violation of this sub-

section, nor shall the term of imprisonment im-

posed under this subsection run concurrently

with any other term of imprisonment including

that imposed for the crime of violence or drug

trafficking crime in which the firearm was used

or carried,

1 Respondent Abreu committed the offenses at issue on

April 3, 1988. At that time, Section 924(c) (1) mandated a

sentence of ten years for any “second or subsequent convic-

tion.” See 18 U.S.C. 924(c) (1) (Supp. V 1987). The statute

was amended by the Anti-Drug Abuse Act of 1988, Pub. L.

No. 100-690, § 6460(2) (A), 102 Stat. 4181, 4373 (Nov. 18,

1988), to require a mandatory sentence of 20 years in the

case of any second or subsequent conviction. See 18 U.S.C.

924(c)(1) (1988). Respondent Thornbrugh committed his

offenses in 1989 and was sentenced under the current version

of Section 924(c) (1). App., infra, 4a n.2.

3

STATEMENT

1. From approximately January 1987 to April

1988, respondent Abreu and co-defendant Juan Car-

los-Alvarez sold cocaine in Utah. In late 1987 or

early 1988, one of their customers gave Abreu a

Mini-14 semi-automatic rifle and a .38 caliber re-

volver as collateral for a credit purchase of cocaine.

The customer never redeemed the firearms, and

Abreu and Alvarez retained possession of the fire-

arms at the apartment they shared. 9 12 89 Tr. 75-

77, 85-86, 89-91, 152-53, 159-61; 9 13/89 Tr. 42-46,

60-62, 74-76.

In February 1988, a government informant made

several controlled purchases of cocaine from Alvarez.

Federal agents subsequently tried to use the inform-

ant to make a large-scale controlled purchase from

the defendants; that proved impossible, however, be-

cause Abreu refused to complete the transaction at

the informant’s apartment. 9/11, 89 7r. 6, 9, 12, 19-

20; 9 12/89 Tr. 99-100; $/13/89 Tr. 31.

Federal agents arrested Abreu and Alvarez in

April 1988. After obtaining a warrant, the agents

searched their apartment and seized approximately

two ounces of cocaine from the kitchen. They also

seized the rifle and the revolver from a closet in

Abreu’s bedroom. 9°11 89 Tr. 34-36, 40-42, 73, 76-

78; 9/12/89 Tr. 29-30; 9/13/89 Tr. 41, 54-56, 75.

At trial, the government proved that Abreu used

the two firearms in connection with two drug traf-

ficking offenses. Abreu was convicted of conspiracy

to possess and to distribute cocaine, in violation of 21

U.S.C. 846 (Count 1); possession of more than 509

grams of cocaine with intent to distribu’, in viola-

tion of 21 U.S.C. 841(a)(1) (Count 2); use of the

semi-automatic rifle in connection with the substan-

tive drug offense charged in Count 2, in violation of

4

18 U.S.C. 924(c) (Count 3); use of the same rifle in

connection with the substantive drug offense charged

in Count 1, in violation of Section 924(c) (Count 4) ;

use of the .38 caliber revolver in connection with the

substantive drug offense charged in Count 2, in vio-

lation of Section 924(c} (Count 5); and use of the

38 caliber revolver in connection with the substan-

tive drug offense charged in Count 1, also in violation

of Section 924(c) (Count 6). See App., infra, 2a.

t sentencing, the district court ruled that Abreu’s

conviction on Count 3 merged with his conviction on

Count 4, and that his conviction on Count 5 merged

with his conviction on Count 6. See App., fra, 22a,

33a. Abreu was then sentenced to concurrent terms

of 200 months’ imprisonment on Counts 1 and 2; to

a consecutive five-year prison term on Count 5; and

to an enhanced consecutive ten-year prison term on

Count 6 as a “second or subsequent” conviction under

Section 924(c). App., infra, 22a.

2. James David Thornbrugh committed three bank

robberies in January and March 1989. Thornbrugh

was arrested after the third robbery and charged

with three counts of armed bank robbery, in violation

of 18 U.S.C. 2113 (Counts 1, 2, and 3), and three

counts of using a firearm in relation to a crime of

violence, in violation of 18 U.S.C. 924(¢c) (Counts 4,

5, and 6). Thornbrugh was convicted by a jury on

all six counts. App., infra, 46a.

At sentencing, the district court departed below

the range prescribed by the Sentencing Guidelines

and sentenced Thornbrugh to concurrent terms of

three months’ imprisonment on the bank robbery con-

victions. Pursuant to the enhanced penaity provi-

sions of Section 924(c), the district court sentenced

Thornbrugh to a consecutive five-year prison term on

Count 4. The court also imposed two additional, con-

5

secutive, 20-year prison terms on Counts 5 and 6 as

“second or subsequent” convictions under Section

924(c). App., infra, 49a.

3. Abreu and Thornbrugh challenged the en-

hanced sentences imposed on them under Séction 924

(c), and the Tenth Circuit chose to address the issue

en bane. App., infra, la-19a. The court of appeals

vacated Abreu’s and Thornbrugh’s sentence enhance-

ments for their ‘second or subsequent” Section 924

(c) convictions and remanded the cases for resen-

tencing. App., infra, 15a.

The en bane court found that the language of Sec-

tion 924(c)’s enhancement provision was ambiguous

in two respects. First, the court stated that while

the words “second” and “subsequent” could be read

to refer to multiple events occurring at the same

point in time, they also could be read, with equal

plausibility, to refer to two or more events occurring

sequentially. App., imfra, 5a. Second, the court

stated that the ambiguity was “heightened” because

the words “second or subsequent” were used to mod-

ify the word “conviction,” which was, in the absence

of a statutory definition, ‘““chameleon[-like|” in char-

acter. The term “conviction,” the court concluded,

could “refer either to the return of a jury verdict of

guilt or to the court’s entry of judgment on that

verdict.” /d. at 5a-7a. Therefore, it was ‘impos-

sib[le] [to] discern] ] the plain meaning of ‘second

or subsequent conviction’ from the language of the

statutory phrase” alone. /d. at Ta.

The court of appeals looked to the legislative his-

tory of Section 924(c) for guidance, but found the

history unilluminating. Faced with a perceived stat-

utory ambiguity, the court applied the rule of lenity

and resolved the ambiguity in favor of the respond-

ents. App., infra, 8a. The court examined various

Ss)

federal and state enhanced-penalty statutes and

found that those statutes required a final conviction

as a condition precedent to the imposition of en-

hanced penalties for second or subsequent convictions.

Id. at 10a-12a. The court declared that such enhanced

penalty regimes were set up in that manner to allow

unenhanced penalties to rehabilitate first-time con-

victs before increased penalties were imposed on re-

peat offenders. /d. at 12a-13a.

The court of appeals ‘“‘ffou]nd this logic persua-

sive” when interpreting Section 924(c) and held

that:

the words ‘second or subsequent’? mean events

that are chronologically sequential, and “‘convic-

tion” means judgment of conviction. Accord-

ingly, * * * a defendant may not receive an en-

hanced sentence under [S]lection 924(c) for a

second or subsequent conviction unless the ot-

fense underlying this conviction took place after

a judgment of conviction had been entered on

the prior offense.

App.. nv fra, 13a-l4a. Although it recognized that its

construction of the statute conflicted with the hold-

ings of six other courts of appeals, the en banc court

stated that its interpretation was “mandated by the

applicable rules of statutory construction, [wa]s

consistent with the other subsequent-offense statutes

enacted by Congress, and best effectuate[d] the pur-

poses underlying such [penalty] statutes generally.”

Id. at 14a.

Judge Brorby dissented, joined by Judges Tacha

and Baldock. The dissenters stated that in their view

the plain meaning of the statutory language dictated

the conclusion that ‘‘a second or subsequent convic-

tion charged in the same indictment as the first * * *

7

trigger[s] the enhancement provision of § 924(c).”

App., infra, 19a.

REASONS FOR GRANTING THE PETITION

We submit that the court of appeals erred in hold-

ing that the sentence enhancement provision of 18

U.S.C. 924(c) applies only to “second or subsequent’”’

convictions that occur after a conviction has been

entered on a prior offense. The decision in this case

has created a conflict between the Tenth Circuit and

the seven other courts of appeals that have inter-

preted the “‘second or subsequent conviction” lan-

guage of 18 U.S.C. 924(c). See United States v.

Bernier, 954 F.2d 818, 820-821 (2d Cir. 1992);

United States vy. Deal, 954 F.2d 262, 263 (5th Cir.

1992), petition for cert. pending, No. 91-8199; United

States v. Raynor, 939 F.2d 191, 193-194 (4th Cir.

1991); United States v. Bennett, 908 F.2d 189, 194

(7th Cir.), cert. denied, 111 S. Ct. 534 (1990) ; United

States vy. Nabors, 901 F.2d 1351, 1358-1359 (6th

Cir.), cert. denied, 111 S. Ct. 192 (1990); United

States y. Foote, 898 F.2d 659, 668 (8th Cir.), cert.

denied, 111 S. Ct. 112 (1990); United States vy.

Rawlings, 821 F.2d 1543, 1546 {11th Cir.), cert.

denied, 484 U.S. 979 (1987).°

The United States has acquiesced in the petition

for a writ of certiorari in Deal y. United States, No.

91-8199, to resolve the conflict created by the decision

in this ease. The issue in this case is identical to the

one presented in Deal. Accordingly, the petition

2 A panel of the Eighth Circuit recently suggested that that

court should reconsider en banc its holding in United States

Vv. Foote, supra, in light of the Tenth Circuit’s holding in this

case. See United States v. Jones, No. 91-1987 (8th Cir. June

9, 1992), slip op. 22.

8

should be held and disposed of in light of this Court’s

resolution of the petition in Deal.

CONCLUSION

The petition for a writ of certiorari should be held

and disposed of in light of this Court’s resolution of

the petition for a writ of certiorari in Deal v. United

States, No. 91-8199.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

JULY 1992

APPENDIX A

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 89-4145

(D. Utah)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v.

ORESTES LUCIANO ABREU, DEFENDANT-APPELLANT

Nos. 89-5166 & 89-5173

(N.D. Okla. )

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

v.

JAMES DAVID THORNBRUGH, DEFENDANT-APPELLANT

OPINION ON REHEARING EN BANC

[Filed Apr. 13, 1992]

Before MCKAY, Chief Judge, HOLLOWAY, LOGAN,

SEYMOUR, MOORE, ANDERSON, TACHA, BAL-

DOCK, BRORBY, and EBEL, Circuit Judges.

(la)

2a

SEYMOUR, Circuit Judge.

The court, on its own motion, ordered rehearing

en banc in these two appeals to consider the interpre-

tation of the enhancement provision in 18 U.S.C.

$ 924(c)(1) (1988). The remaining issues raised

on appeal are decided separately in two panel opin-

ions filed simultaneously with this opinion. See

United States v. Abreu, F.2d (10th Cir.

No. 89-4146 filed April 13, 1992; United States v.

Thornbrugh, F.2d —— (10th Cir. Nos. &9-

5156, 89-5173, filed April 138, 1992).

I.

Orestes Abreu was charged in a second superseding

indictment with one count of conspiring to possess

cocaine with intent to distribute, one substantive

count of possessing cocaine with intent to distribute,

and four counts of using a firearm during and in

relation to a drug offense in violation of 18 U.S.C.

§ 924(c)(1).' Two of the section 924 charges per-

tained to the conspiracy count; one of those charges

alleged the use of a rifle, and one alleged the use of

a revolver. The remaining two section 924 charges

pertained to the count charging the substantive drug

offense, which was also alleged to be an overt act in

furtherance of the conspiracy. One of these section

924 charges alleged the use of the rifle during the

substantive offense, and the other alleged use of the

revolver. Abreu was convicted on all counts. In addi-

tion to the sentences imposed on the conspiracy and

drug charges, the trial court sentenced Abreu on two

of the section 924 charges. The court imposed a 60-

1 Abreu was also charged with failure to appear in viola-

tion of 18 U.S.C. § 3146(a) (1) (1988). He pled guilty to

that charge and it is not at issue on appeal.

8a

month sentence on the count charging the use of a

revolver during the substantive drug offense, and an

enhanced sentence of 120 months on the charge alleg-

ing use of a rifle during the conspiracy offense, the

sentences to run consecutively to the drug charges

and to each other.

James Thornbrugh was charged in a six-count in-

dictment with three counts of bank robbery, occur-

ring on three different dates, and three section 924

counts, one pertaining to each of the alleged bank

robbery offenses. He was found guilty on all six

counts. In addition to giving Thornbrugh concurrent

sentences on the robbery offenses, the court imposed

a 60-month sentence on one section 924 count, and

enhanced 240-month sentences on each of the other

two, these sentences to run concurrently to the rob-

bery sentences and consecutively to each other.

Abreu and Thornbrugh both raise the propriety of

their enhanced sentences under section 924. That

section currently provides in pertinent part:

“Whoever, during and in relation to any

crime of violence or drug trafficking crime (in-

cluding a crime of violence or drug trafficking

crime which provides for an enhanced punish-

ment if committed by the use of a deadly or

dangerous weapon or device) for which he may

be prosecuted in a court of the United States,

uses or carries a firearm, shall, in addition to

the punishment for such crime of violence or

drug trafficking crime, be sentenced to imprison-

ment for five years, .... In the case of his

second or subsequent conviction under this sub-

section, such person shall be sentenced to im-

prisonment for twenty years... .”

4a

18 U.S.C. § 924(c) (1) (emphasis added).* Defend-

ants challenge the applicability of the sentence en-

hancement provision for a ‘‘second or subsequent con-

viction.” The government urges this court to hold

that the phrase “second or subsequent conviction”

includes one or two separate offenses charged in the

same indictment. For purposes of our en bane con-

sideration, we asked the parties to address whether

under 18 U.S.C. § 924(c) an enhanced sentence for

a “second or subsequent conviction” may be imposed:

(1) when a defendant is convicted of two or

more separate offenses charged in the same

indictment regardless of when the offenses

occurred ; or

(2) only when a defendant is convicted of an

offense that was committed in a subsequent

transaction distinet from the conduct con-

stituting the first section 924(c) offense,

without regard to when the first conviction

occurred; or

(3) only when a defendant is convicted of an

offense that was committed subsequent to

an earlier conviction under section 924(c).

2 Abreu committed the offenses at issue on April 3, 1988.

At that time, section 924(c)(1) provided for a mandatory

sentence of five years on a first offense, and a mandatory

sentence of ten years on a “second or subsequent conviction.”

See 18 U.S.C. § 924(c) (1) (Supp. V 1987). The statute was

amended by the Anti-Drug Abuse Act of 1988, Pub. L. No.

100-690, § 6460(2) (A), 102 Stat. 4181, 4373 (Nov. 18, 1988),

to provide a mandatory sentence of twenty years in the case

of a second or subsequent conviction. See 18 U.S.C. § 924

(c) (1) (1988). Thornbrugh committed his offenses in 1989

and was sentenced under the current version.

va

IT.

In order to ascertain the meaning of section

924(c), we begin with the text of the statute itself.

“A fundamental canon of statutory construction is

that, unless otherwise defined, words will be inter-

preted as taking their ordinary, contemporary, com-

mon meaning.” Perrin v. United States, 444 U.S.

O7, 42 (1979). “Second” is defined as ‘next to the

first in place or time.” Webster’s Third New Inter-

national Dictionary, 2050 (1981). “Subsequent” is

defined as “following in time” or “following in order

of place.” Jd. at 2278. Black’s Law Dictionary, 1351

(6th Deluxe Ed. 1990), defines “second” as ‘sequence

in point or time.” “Subsequent” is defined as “[f]ol-

lowing time; coming or being later than something

else; succeeding.” Jd. at 1427. Thus, while the words

“second” and “subsequent” can be arguably read to

refer to multiple events occurring at the same point

in time, both words can equally plausibly be read as

referring to two or more than two events that occur

sequentially in time.

The textual ambiguity arising from the use of the

words “second or subsequent” is heightened by the

fact that these words modify “conviction,” a term

not defined in the statute itself and which one court

has described as “a chameleon.” Harmon v. Team-

sters Local Union 371, 832 F.2d 976, 978 (7th Cir.

1987). The Supreme Court has noted that “the terms

‘convicted’ or ‘conviction’ do not have the same mean-

ing in every federal statute,” Dickerson v. New Ban-

ner Inst., Inc., 460 U.S. 103, 112 n.6 (1983), rather,

the terms “vary from statute to statute,” id. at 113

n.7.* Indeed, this court has held that a conviction

’ The Court in Dickerson addressed the meaning of the

term “convicted” in the Gun Control Act of 1968, 18 U.S.C.

ba

occurs upon entry of a guilty plea for purposes of

28 C.F.R. § 2.52(c) (2), which requires the Parole

Commission to order forfeiture of street time if a

parolee is “convicted” of a new offense punishable

by imprisonment. See DeCuir v. United States Parole

Comm'n, 800 F.2d 1021, 1023 (10th Cir. 1986).

There, however, the regulation also stated that ‘“[a]n

actual term of confinement or imprisonment need not

have been imposed for such conviction.” 28 C.F.R.

2.52(c)(2). On the other hand, we have also held

that a conviction for purposes of adjudging a defend-

ant as a juvenile delinquent occurs not upon ine plea

but upon the entry of judgment. See United States v.

Steven W., 850 F.2d 648, 649 (10th Cir. 1988) (citing

Lott «. United States, 367 U.S. 421, 426 (1961)

(“the plea itself does not constitute a conviction’) ),

cert. denied, 488 U.S. 1012 (1988).

In short, ‘second or subsequent”? can be read to

describe either multiple events occurring at one time

§§ 922(7) (1), (h) (1). At issue was whether a defendant

was “convicted” within the meaning of the statute when he

pled guilty to a state crime under a deferred sentencing pro-

cedure in which no judgment of conviction was entered.

The Court there held as a matter of federal law that a person

is convicted for purposes of the Gun Control Act upon a plea

of guilty. This decision is not helpful to the instant inquiry

for two reasons. First, the Court stressed that the Gun Con-

trol Act specifically applies not only to those convicted of a

state crime, but to those who have only been indicted. See

460 U.S. at 115-16. The Court viewed the inclusion of indicted

status as indicative of congressional intent that the term

“convicted” be construed broadly. Section 924(c) has no

comparable provision. Second, Congress has effectively over-

ruled Dickerson in the Firearms Owners’ Protection Act, Pub.

L. No. 99-308, §§ 102(6), 104(b), 100 Stat. 449, 452, 459

(1986), which expressly adopts the particular state’s defini-

tion of conviction. See United States v. Pennon, 816 F.2d

527, 529 (10th Cir.), cert. denied, 484 U.S. 987 (1987).

Ta

or multiple events occurring in a chronological se-

quence. “Conviction” can refer either to the return

of a jury verdict of guilt or to the court’s entry of

judgment on that verdict. Accordingly, the text of

the statute does not compel the construction that a

second or subsequent conviction occurs when a de-

fendant is charged in one indictment with more than

One section 924(c) offense and a single judgment of

conviction is entered on that indictment. Given the

impossibility of discerning a plain meaning of “second

or subsequent conviction” from the language of the

statutory phrase, we conclude that the phrase is

ambiguous.

When the plain language of the statute does not

unambiguously reveal its meaning, we turn to the

legislative history. See Blum v. Stenson, 465 U.S.

886, 896 (1984). The legislative history regarding

section 924(c) is sparse.

“[Section] 924(c) was offered as an amendment

on the House floor by Representative Poff, and

passed on the same day. Accordingly, the com-

mittee reports and congressional hearings to

which we normally turn for aid in these situa-

tions simply do not exist, and we are forced in

consequence to search for clues to congressional

intent in the sparse pages of floor debate that

make up the relevant legislative history.”

Busic v. United States, 446 U.S. 398, 405 (1980)

(citations omitted).

One of the few relevant statements made with re-

spect to the language in question is the following

observation by Representative Poff, one of section

924(c)’s sponsors. He stated that the intended effect

of the provision’s minimum mandatory penalty was

Sa

“to persuade the man who is tempted to commit

a Federal felony to leave his gun at home. Any

such person should understand that if he uses

his gun and is caught and convicted, he is going

to jail. He should further understand that if he

does so a second time, he is going to jail for

a longer time.”

114 Cong. Rec. 22231 (daily ed. July 19, 1968) (em-

phasis added). Representative Rogers echoed Poff’s

statement: “[A]ny person who commits a crime and

uses a gun will know that he cannot get out of serving

a penalty in jail. And if he does it a second time,

there will be a stronger penalty.” Jd. at 22237. As

With the statutory language itself, these isolated

statements could support either of two equally plausi-

ble meanings. In our judgment, however, the legis-

lators’ repeated reference to committing a_ section

924(c) crime ‘a second time’ does not compel a

particular interpretation of ‘second or subsequent

conviction.”

Thus, ‘“‘[n]Jeither the wording of the statute nor

its legislative history points clearly to either mean-

ing. In that circumstance, the Court applies a policy

of lenity and adopts the less harsh meaning.” Ladner

v. United States, 358 U.S. 169, 177 (1958): see also

Bifulco v. United States, 447 U.S. 381, 387 (1980) ;

United States v. Bass, 404 U.S. 336, 347-48 (1971);

United States v. Freisinger, 937 F.2d 383, 391 (8th

Cir. 1991) (construing ambiguous language in 924

(ce) (1) in defendant’s favor in different context);

United States v. Chalan, 812 F.2d 1302, 1317 (10th

Cir. 1987) (same). This principle is equally applica-

ble in construing sentencing provisions. See, e.g.,

Hughey v. United States, 110 S. Ct. 1979, 1985 (1990).

9a

Application of the rule of lenity is particularly

appropriate in this case. As we have pointed out,

“[s]econd and subsequent offense statutes are admit-

tedly harsh and must be strictly construed to avoid

and protect against unintended applications.” Rogers

v. United States, 325 F.2d 485, 487 (10th Cir. 1963),

reversed on other grounds and remanded for resen-

tencing, 378 U.S. 549 (1964); see also Gonzales v.

United States, 224 F.2d 431, 435 (1st Cir. 1955).

“While in common parlance a verdict of guilty

is said to be a conviction, it must be given its

strict legal meaning when a second offense is

made a distinct crime, carrying with it heavier

penalties. The authorities overwhelmingly estab-

lish, first, that in the legal sense a conviction is

a judgment on a plea or verdict of guilty; second,

a second offense, carrying with it a more severe

sentence, cannot be committed in law until there

has been a judgment on the first; third, the in-

dictment, charging the accused of being a second

offender, must set forth the fact of the prior con-

viction, as that is an element of the offense in

the sense that it aggravates the offense described

in the indictment, and authorizes the increased

punishment.”

Singer v. United States, 278 F. 415, 420 (3rd Cir.).

cert. denied, 258 U.S. 620 (1922). It is clear that,

as did the statute at issue in Singer, section 924(c)

creates distinct offenses rather than being merely a

sentencing enhancement provision. See Simpson v.

United States, 435 U.S. 6, 10 (1978); United States

v. Adams, 771 F.2d 783, 787 (3d Cir.) (construing

Special Dangerous Offender Act and distinguishing

Singer as concerning statute creating second distinct

offense), cert. denied, 474 U.S. 1013 (1985). Thus,

10a

the same principles of lenity and strict construction

apply here that were applicable in Singer. We are

not at iiberty to interpret section 924(c) “so as to

increase the penalty that it places on an individual

when such an interpretation can be based on no more

than a guess as to what Congress intended.” Ladner,

358 U.S. at 178.

Although we have focused only on the statutory

language and its legislative history thus far in our

attempt to ascertain congressional intent, the Su-

preme Court has indicated that reference to other

statutes may be appropriate as well. See, e.g., United

States v. American Trucking Ass’ns, 310 U.S. 534,

543-44 (1940). In American Trucking, the Court

interpreted the Motor Carrier Act of 1935 in light

of the Hours of Service Act, the Motor Vehicle Act,

the laws governing the Civil] Aeronautics Authority,

and the subsequently enacted Fair Labor Standards

Act. Significantly, the Court in American Trucking

was “especially hesitant” to interpret the clause in

question in a way that would deviate from the mean-

ing of other related statutes because it was adopted

as a floor amendment. See 310 U.S. at 546-47. In

Dickerson, the Court likewise turned to related fed-

eral statutes and their legislative history. See 460

U.S. at 117-18.

These authorities support an interpretation of

section 924(c) that is inforined by the numerous

statutes requiring the enhancement of a _ sentence

because of the commission of a subsequent offense.

Congress has enacted many statutes providing for

enhancement on the basis of the commission of a

second offense after a prior conviction. See, e.g., 18

U.S.C. § 3575(e) (1988) (special offender statute) ;

21 U.S.C. § 841(b) (1) (1988) (commission of drug

crime after prior drug convictions) ; 21 U.S.C. § 844

(a) (1988) (simple possession of drugs after two or

lla

more prior convictions) ; 21 U.S.C. § 845(a) (engag-

ing in continuing criminal enterprise after prior

conviction); 21 U.S.C. §$ 859(b) (1988) (distribut-

ing drugs to minor after prior conviction); 21

U.S.C. $ 860(b) (1988) (distributing or manufactur-

ing drugs near school after prior conviction); 21

U.S.C. £ 861(c) (1988) (employing minors to violate

drug laws after prior conviction). The government

has not pointed us to any federal enhancement statute

in which a prior conviction was not required.

Moreover, in 28 U.S.C. §$994(h), Congress ad-

dressed the promulgation of sentencing guidelines

applicable to defendants categorized as career offend-

ers. Such defendants were there defined as those

who, inter alia, had “previously been convicted of

two or more prior felonies.” Jd. § 994(h) (2). The

sentencing guideline implementing this directive,

section 4B1.2(3), states that “[t]he term ‘two prior

felony convictions’ means [that] the defendant com-

mitted the instant offense subsequent to sustaining

at least two felony convictions.” The guideline fur-

ther states that the “date that a defendant sustained

a conviction shall be the date the judgment of con-

viction was entered,” thus precluding a conviction

arising from the same indictment as the offense of

conviction to be counted as a ‘prior felony’ for pur-

poses of placing the defendant in the career offender

category. Id.

We find particularly significant the sentence en-

hancement statute pertaining to illegally importing

and exporting drugs, which doubles the otherwise

authorized punishment in the case of a “second or

subsequent offense.” See 21 U.S.C. § 962(a) (1988)

(emphasis added). Congress in that instance specifi-

cally stated that “[for purposes of this section, a

person shall be considered convicted of a second or

subsequent offense if, prior to the commission of such

12a

offense, one or more prior convictions of him under

[laws relating to drugs] have become final.” Z/d.

$ 962(b).

Finally, construing “second or subsequent convie-

tion”? to require that the offense underiying that con-

viction be committed after a defendant has received

a judgment of conviction on the prior offense imple-

ments the legislative ».urpose upon which all such

subsequent-offense statutes are grounded. These stat-

utes were the subject of early attacks on the basis

of double jeopardy. Defendants argued that the in-

creased severity of the sentence for the second offense

was in effect a second punishment for the first offense.

In rejecting this argument, the Supreme Court stated

that rather than punishing the defendant again for

the first offense, “the statute ‘imposes a higher punish-

ment for the same offense upon one who proves, by a

second or third conviction, that the former punish-

ment has been inefficacious in doing the work of

reform, for which it was designed.’” Moore v. Mis-

souri, 159 U.S. 673, 677 (1895) (emphasis added).

The purpose and construction of subsequent-offender

statutes was also considered at length in Gonzales,

224 F.2d 431. The court there considered whether a

prior conviction must occur before the commission of

the subsequent offense in the context of the particular

statute and facts before it. However, its discussion

of the purpose to be achieved by these types of stat-

utes generally, and the construction which this pur-

pose requires, is equally relevant here. The court

pointed to the Supreme Court’s language in Moore

that we have quoted above as recognizing that “the

reformation and retribution theories of punishment

[are] the primary reasons for imposing greater pen-

alties on the repeater.” Jd. at 433. The court rea-

soned that

13a

“if subsequent offender statutes are intended to

reform the offender and deprive him by reason

of his incarceration of the opportunity for con-

tinued criminal conduct, then such statutes would

seem to apply properly only to offenders convicted

prior to the subsequent offense, for the repetition

of criminal activity after conviction would show

the inadequacy of a first-offender penalty to per-

form this function and the need of increased

penalties.”

Id. (emphasis added).

We find this logic persuasive. A statute designed

to punish a second offender more severely when he

has not learned from the penalty imposed for his

prior offense should not be construed to apply before

that penalty has had the chance to have the desired

effect on the offender. We thus conclude that the

primary purpose of subsequent offense legislation

“would be served best by applying the statutes only

to those offenders who have been convicted prior to

the commission of the subsequent offense.” Jd. at 434.

Our conclusion is bolstered by the previously quoted

statements of Rep. Poff concerning the effect he in-

tended this provision to have. See supra at 9.

In sum, we conclude that section 924(c) must be

strictly construed. Moreover, because the text of the

statute and its legislative history reveal an ambiguity

concerning the construction Congress intended to give

the words “second or subsequent conviction,’”’ we must

apply the rule of lenity. Under this rule, the words

“second or subsequent”? mean events that are chrono-

logically sequential, and ‘“‘conviction” means judgment

of conviction. Accordingly, we hold that a defei.dant

may not receive an enhanced sentence under section

9241(c) for a second or subsequent conviction unless

14a

the offense underlying this conviction took place after

a judgment of conviction had been entered on the

prior offense. We believe this construction is man-

dated by the applicable rules of statutory construc-

tion, is consistent with the other subsequent-offense

statutes enacted by Congress, and best effectuates the

purpose underlying such statutes generally.

We recognize that our holding is in conflict with

United States v. Rawlings, 821 F.2d 1543 (11th Cir.),

cert. denied, 484 U.S. 979 (1987), and those circuits

that have followed the reasoning of that case. See

United States v. Raynor, 959 F.2d 191, 193-94 (4th

Cir, 1991) (agreeing with Rawlings and holding that

section 924(¢c) enhancement applies to defendant

charged with two counts in same indictment) ; United

States v. Nabors, 901 F.2d 1351, 1858-59 (6th Cir.)

(relying on “reasoning in Rawlings” to conclude that

two separate 924(c) offenses charged in same indict-

ment support enhanced sentences), cert. denied, 111

S. Ct. 192 (1990): United States v. Foote, 898 F.2d

659, 668 (Sth Cir.) (agreeing with holding and rea-

soning of Rawlings), cert. denied, 111 S. Ct. 112

(1990); United States v. Bennett, 908 F.2d 189, 194

(7th Cir.) (same), cert. denied, 111 S. Ct. 534

(1990): see also United States v. Bernier, 954 F.2d

818 1992 WL 8248 (2d Cir. Jan. 22, 1992) (per

curiam) (noting holding in Rawlings line of cases

and reaching same result). However, as discussed

above, we simply cannot agree with those courts that

the language and legislative history unambiguously

demand the harsh construction those courts impose.‘

4 The court in Rawlings observed that the habitual offender

statute, 18 U.S.C. § 3575, specifically defined a special offender

as one who has previously been convicted ... [and] “im-

prisoned prior to the [instant] felony.” Based on this ob-

15a

We find significant their failure to recognize that

section 924(c) must be construed strictly, and that

the section contains a patent ambiguity arising from

the undefined term “conviction.” It is clear to us

that at a minimum, a “second or subsequent convic-

tion,” strictly construed, requires more than one judg-

ment of conviction, thus precluding the result reached

in those cases.

Accordingly, we hold that Abreu and Thorr srugh

were improperly given enhanced sentences for second

oy subsequent convictions under section 924(c). Such

an enhanced sentence is only proper when the under-

lying offense has been committed after a judgment of

conviction on the prior section 924(c) offense. The

enhanced sentences under section 924(¢c) in both cases

are REVERSED and the cases are REMANDED for

resentencing. For a disposition of the remaining

arguments raised individually by each appellant, we

direct attention to the panel opinions in those cases.

servation, the Rawlings court concluded that where Congress

intended to provide for enhancement on the basis of previous

convictions, it did so explicitly. United States v. Rawlings,

821 F.2d at 1546. We do not find this argument persuasive

given that section 924(c) was a floor amendment offered and

passed on the same day.

We also disagree with the court’s statement in United

States v. Raynor, 939 F.2d at 194, that Congress’s failure to

specifically define “second or subsequent conviction” with

respect to section 924(c) requires us to construe that section

differently from the congressionally mandated construction

in 21 U.S.C. § 962(b), see supra at 13-14. An equally plausi-

ble argument can be made that by using the word “conviction”

in section 924(c), instead of the word ‘offense’ used in sec-

tion 962(a), Congress intended the same construction for

both provisions without the necessity of a definitional provi-

sion in section 924(c) comparable to that in section 962(b).

l6a

BRORBY, Circuit Judge, dissenting, joined by

TACHA and BALDOCK, Circuit Judges.

Certainly more futile exercises exist than dissent-

ine, but at the moment I can think of none. Never-

theless, the conclusion reached by the majority com-

pels my comment by way of dissent.

The two cases decided are legally identical. Each

defendant committed multiple offenses, Thornbrugh

having a propensity to commit bank robberies and

Abreu a propensity to commit drug offenses. Both

defendants utilized firearms in the perpetration of

their multiple crimes. Ultimately, each was appre-

hended, charged with the multiple offenses in a single

indictment and convicted of multiple felonies.

At sentencing, the district court applied 18 U.S.C.

$ 924(c), which reads: “In the case of his second or

subsequent conviction ... such person shall be sen-

tenced to... .” Thus, the district court enhanced

each defendant’s sentence for the second conviction

which the jury returned simultaneously with the first

conviction.

The sole issue to be decided is whether § 924(c)

mandates an enhanced sentence when a defendant is

convicted of two or more distinct $ 924(c) offenses

when the offenses are charged in the same indictment.

The majority rejected the analysis employed by all

six circuits that have previously considered the ques-

tion presented. Instead, the majority concluded the

statute was ambiguous, applied the rule of lenity, and

held the statute applies only when the commission

of a second offense is preceded by the entry of a

judgment of conviction. The majority has thus re-

written 18 U.S.C. § 924(c) to read:

Whoever, having been previously charged and

convicted under 924(¢) which conviction is evi-

a a ee

17a

denced by the entry of a judgment of conviction,

then commits another § 924(c) offense shall be

sentenced to... .

All six of the circuits that have previously con-

sidered this question have decided the statute is not

ambiguous and have held a second conviction charged

in the same indictment as the first triggers the en-

hancement provision of § 924(c).' The analysis em-

ployed by the Fourth Cireuit in United States v.

Raynor, 939 F.2d 191 (4th Cir. 1991), is illustrative.

The Raynor court said:

The plain meaning of the statute supports the

conclusion that a conviction on a second firearms

count, even though charged in the same indict-

ment as the first, gives rise to the enhanced

sentence. The statute directs enhancement for a

“second or subsequent conviction.” The second

conviction is the one that follows the first, either

in time or in a number sequence, and the subse-

quent conviction is any that follows the second,

either in time or in a number sequence. The en-

hancement that is mandated by the statute does

not depend on satisfying conditions that the sec-

ond or subsequent conviction be by reason of a

different indictment, or that the sentence be im-

posed on the first conviction before the enhance-

ment can apply to the second, or that the de-

fendant have served the sentence on the first. To

construe the statute with such conditions would

interject terms not included, and surely not in-

tended, by Congress.

I/,, at 193. I am persuaded by this reasoning.

1 The majority opinion cites to these decisions.

18a

Our six sister circuits have likewise delved into the

collateral issues including the legislative history, Con-

eressional intent, Sentencing Guidelines, rules of stat-

utory construction and analogous cases, and have come

to the opposite conclusion from that enunciated by

our majority. I embrace the reasoning and analysis

as set forth by our sister circuits. I can add nothing

to their analysis.

The majority’s application of the rule of lenity

deserves special comment. A statute is not deemed

ambiguous “for purposes of lenity merely because it

[is] possible to articulate a construction more narrow

than that urged by the Government.” Moskal v.

United States, USS. , 111 S. Ct. 461, 465

(1990). Instead, lenity is reserved ‘‘for those situa-

tions in which a reasonable doubt persists about a

statute’s intended scope.”’ Jd. The rule of lenity

applies only “ ‘at the end of the process of construing

what Congress has expressed, not at the beginning

as an overriding consideration of being lenient to

wrongdoers.’ ”” Chapman v. United States, US.

, 1118S. Ct. 1919, 1926 (1991) (quoting Callanan

vu. United States, #64 U.S. 587, 596 (1961), and

citing Moskal). The majority has, in effect, decided

that $ 924(c) is draconian and meant to apply only

to a recidivist. This reasoning has driven the major-

ity into the corral formed by Moskal and Chapman.

The fatal flaw in the majority’s analysis may best

be illustrated by a hypothetical factual scenario.

Suppose a defendant commits two separate and dis-

tinct $924(c) violations one year apart. Subse-

quently, he is apprehended and convicted of the first.

Under the majority’s helding, once the second crime

is solved and defendant is charged and convicted, his

sentence may not be enhanced because the commis-

19a

sion of the second crime occurred prior to his convic-

tion for the first. Even more extreme would be the

defendant who escapes during his trial and commits

a second § 924(c) offense prior to the entry of the

judgment of conviction. Neither could his sentence

for a second conviction be enhanced. But if the ma-

jority employed a plain language analysis to § 924

(c), sentence enhancement would apply under either

scenario.

Assuming, arguendo, the majority is correct in

concluding §$924(c) may be read in more than one

way, it is still impossible to reach the interpretation

they suggest. The only other logical way to read this

statute is that it requires the second or subsequent

conviction to be charged in an indictment separate

from the first. As the Fourth Circuit has aptly

pointed out, reading that requirement into § 924(c)

does nothing more than require prosecutors to go

through the additional ministerial task of charging

repeat offenders in separate indictments. See Raynor,

939 F.2d at 193. The only legitimate interpretation

remaining allows a second or subsequent conviction

charged in the same indictment as the first to trigger

the enhancement provisions of § 924(c).

'f you pump enough water into a dry creek it be-

comes a river. The majority has pumped sufficient

conditions into § 924(c) to transform it into a lenient

vehicle for wrongdoers to ride.

I would affirm the enhanced sentences given to

Mr. Abreu and Mr. Thornbrugh for their second and

subsequent convictions.

20a

APPENDIX B

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 89-4145

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE

Vv),

ORESTES LUCIANO ABREU, DEFENDANT-APPELLANT

Appeal from the United States District Court

for the District of Utah

(D.C. No. 88-CR-060S )

[Filed Apr. 13, 1992]

sefore SEYMOUR and EBEL, Circuit Judges, and

BROWN,* District Judge.

E BEL, Circuit Judge.

* Honorable Wesley E. Brown, Senior District Judge for

the District of Kansas, sitting by designation.

2la

Appellant Orestes Luciano Abreu appeals his con-

viction and sentencing for various drug trafficking

and weapons offenses. He raises eleven issues on

appeal. We affirm the district court on all issues ex-

cept for appellant’s enhanced sentence for a second or

subsequent conviction under section 924(c)(1). As

to that sentence, we vacate and remand for resentenc-

ing pursuant to the en banc opinion in this case is-

sued concurrently with this panel decision.

Facts

Appellant Orestes Luciano Abreu ' was arrested in

Salt Lake City along with his “nephew” and _ co-

defendant, Juan Carlos Alvarez, who allegedly served

as Abreu’s interpreter and partner. The two had

been the targets of a long-standing undercover nar-

cotics investigation. Following the arrest, and under

the authority of a search warrant, government offi-

cials entered defendants’ Salt Lake City apartment

and uncovered approximately 641 grams of a white

powdery substance in a kitchen cabinet. The sub-

stance was subsequently tested and found to contain

cocaine. In addition to the white powder, officials

seized 9 scale, grinder, and plastic bags from under

the kitchen sink, along with a triple beam balance

scale commonly used by narcoties traffickers to weigh

their drugs. A search of Abreu’s bedroom uncovered

a semi-automatic rifle, a .38 caliber Colt revolver con-

taining three bullets, and ammunition for the rifle.

Abreu eventually was indicted for violations of 21

U.S.C. £846 (conspiracy to possess and distribute

1 Appellant’s Brief refers to appellant as Mr. Abrue. How-

ever, the notice of appeal, R. Vol. I, doc. 130, and all prior

documents refer to defendant as Mr. Abreu. For consistency’s

sake, we will refer to defendant as Mr. Abreu, though we are

mindful that the proper spelling may be A-B-R-U-E.

22a

cocaine), 21 U.S.C. $ &41(a)(1) and 1% U.S.C. £ 2

(possession with intent to distribute cocaine and aid-

ing and abetting therein), 21 U.S.C. § 46 (conspir-

acy), and four counts of 16% U.S.C. § 924(¢e) (1) Cuse

of a firearm during a drug trafficking crime). He

was subsequently charged with violating 1% U.S.C.

3146 for failing to appear after attempting to e

cape from a Mississippi halfway house before trial,

Abreu pled guilty to the last of these charges and wis

convicted on al! others following a jury trial. At the

trial, his former partner Alvarez testified for the gov-

ernment. The district court eventually sentenced

Abreu to a total of 380 months Incarceration: 200

months on the drug possession charge and 200 months

on the conspiracy charge, to run concurrently, plu

60 months for one gun charge and an enhanced 120

month sentence for the ‘second or subsequent’ gun

conviction, both to run consecutively following the

service of the first 200 months. In addition, Abreu

was sentenced to 1% months on the failure to appear

charge, to yun concurrently with the other sentences,

Abreu now appeals his conviction and sentencing and

raices eleven issues for our review. We consider each

in turn.

I. Does Appellants Conviction Under 21) USC.

S fae (a) (1) Viclate the Kighth Amendment?

Appellant maintains that the mandatory minimum

punishment preserihed by the Armed Career Crim

inal Act, 21 U.S.C. $8414) (1), violates his rights

under the Kighth and Fourteenth Amendments. Spe-

cifically, appellant contends that (1) the mandatory

minimum sentence deprived him of “individualized”

sentencing, and (2) the mandatory minimum sen-

tence Is so grossly disproportionate as to be eruel and

unusual under the test set forth in Solem v. Helm,

eee

234

463 U.S. 277 (1983). We find no merit to these

claims,

Since the filing of this appeal, the Supreme Court

handed down its opinion in Harmelin v. Michigan,

Ll} Ss. Ct. 2680 (1991), which upheld a mandatory

life imprisonment sentence without possibility of pa-

role for conviction of possession of more than 650

grams of cocaine. Although the Court was split in its

reasoning, it is clear from the various opinions gen-

erated in that case that mandatory sentences are per-

missible for non-capital punishment. Thus, Harmelin

discredits appellant’s argument that his mandatory

minimum sentence is unconstitutional because it de-

prives him of “individualized” sentencing.

Turning to appellant’s proportionality argument,

we likewise find no Kighth Amendment problem, Al-

though a majority of the Court in Harmelin held that

the constitution does impose a proportionality re-

quirement on non-capital sentences,’ considerable lati-

tude is to be given to the legislature or Congress in

setting sentences, The appellant is correct in assert-

ing that “[t]he Armed Career Criminal Act calls for

* Although the Harmelin Court upheld the sentence by a 5-4

vote, the majority was split on the appropriateness of the

“proportionality” principle in non-capital cases. Justice

Scalia, joined by Chief Justice Rehnquist, argued that “Solem

lv. Helm, 463 U.S. 277 (1983)| was simply wrong: the

fighth Amendment contains no proportionality guarantee.”

Harmelin, 111 S. Ct. at 2686. Justice Kennedy, joined by

Justices O’Connor and Souter, concluded that the “Eighth

Amendment proportionality principle also applies to non-

capital sentences” but found that “our proportionality deci-

sions ... require us to uphold petitioner’s sentence.” Jd. at

2702. The dissenters argued that “the statutorily mandated

punishment at issue here... fails suster under Solem and,

consequently, under the Eighth Amendment to the Constitu-

tion.” Jd. at 2716.

24a

a mandatory minimum punishment which is greater

than the maximum term imposed on many persons

convicted of homicide,” Appellant’s Brief at 18.

However, the Supreme Court has upheld similarly

severe sentences for drug offenses. For example, in

Hutto v. Davis, 454 U.S. 370 (1982), the Supreme

Court rejected an Eighth Amendment challenge to a

prison term of 40 years and fine of $20,000 for pos-

session and distribution of approximately nine ounces

of marijuana. Similarly, in Harmelin, the Court up-

held a life sentence with no possibility of parole for a

defendant convicted of possession of slightly more

than 650 grams of cocaine.

In the case at hand, appellant was convicted for

possession of 641 grams of cocaine. Although appel-

lant contends that the mixture seized was of low con-

centration and virtually “unmarketable,” 21 U.S.C.

S$ 841 does not require any degree of drug purity for

a conviction. We think it is clear that the sentence at

issue here is constitutionally sound. Although the ten-

year minimum prescribed by § 841 is indeed a harsh

penalty, it hardly compares to a life sentence without

parole as Was at issue—and upheld—in Harmelin. We

therefore reject appeilant’s proportionality argument.

Il. Was There Sufficient Evidence to Support a

Finding of Possession Under 21 U.S.C. $841

(a)(1)?

Appellant contends that there was insufficient evi-

dence to support a finding of cocaine possession—one

of the elements of a $ 841(a)(1) charge. Accord-

ing to appellant, “[s]howing that one is present in the

proximity of a cache of drugs is not sufficient to

demonstrate constructive possession, nor is the fact

that the person accused habited the apartment where

the drugs were found sufficient to impute construc-

LESS ee.

25a

tive possession.” Appellant’s Brief at 20. We con-

clude that ‘constructive possession” is not an element

ofa § 841(a)(1) charge where, as here, appellant was

charged under the aiding and abetting statute, 18

U.S.C. § 2. We therefore reject appellant’s claim.

In this case, appellant was indicted and subsequently

convicted of

knowingly and intentionally . . . possess | ing ]

with intent to distribute in excess of | kilogram

of a mixture containing cocaine, a Schedule II

narcotic drug controlled substance, all in viola-

tion of Section 841(a)(i) of Title 21, United

States Code, and Section 2 of Title 18, United

States Code, with penalties as provided in Title

21, United States Code, Section 841(b) (1)(B).

Kt. Vol. I, Doe. 90 at 3 (emphasis added). According

to 18 U.S.C. $2, a defendant may be charged as a

principal in the commission of a substantive crim-

inal offense whenever he “aids, abets, counsels, com-

mands, induces or procures its commission... .” In

order to prove a crime of aiding and abetting, the

government must prove that the defendant associated

with the criminal venture, that he purposefully par-

ticipated in it, and that he sought by his action to

bring it about. United States v. Vaden, 912 F.2d 780,

185 (Sth Cir. 1990); United States v. Medina, 887

F.2d 528, 532 (5th Cir. 1989).

Here, there was sufficient evidence for the jury to

conclude that appellant aided and abetted Alvarez in

the commission of the 841(a) offense. As we noted

in United States v. Culpepper, 834 F.2d 879 (10th

Cir. 1987), “[e]vidence is considered sufficient to

support a criminal conviction if, when viewed in the

light most favorable to the government, a reasonable

jury could find the defendant guilty beyond a rea-

26a

sonable doubt.” Jd. at 881 (citation omitted). We

think it was perfectly reasonable for the jury to con-

clude that appellant associated with the criminal ven-

ture, that he purposefully participated in it, and

that he sought by his actions to bring it about.

In any event, we also conclude that there was suf-

ficient evidence to support a finding of constructive

possession on the part of appellant. As we noted in

Culpepper, knowing exercise of dominion and control

over the narcotics constitutes constructive possession,

and constructive possession may be joint among sev-

eral individuals. Jd. The fact that the cocaine was

found in appellant’s apartment, coupled with the testi-

mony of Alvarez and various law enforcement officers,

supports the conclusion that appellant constructively

possessed the cocaine. We therefore affirm the con-

viction for possession with intent to distribute cocaine.

Ill. Was There Sufficient Evidence To Support a

Conviction for Conspiracy?

Appeliant maintains that the prosecution must

show, “by a preponderance of the evidence, independ-

ent of the co-conspirator’s statement, that a conspir-

acy existed, and that the co-conspirator and the de-

fendant were members of the conspiracy.” Appel-

lant’s Reply Brief at 1 (emphasis in original).

According to appellant, the government relied en-

tirely on the statements of Alvarez—the alleged co-

conspirator—without offering any independent proof

of the conspiracy. Thus, appellant concludes that

Alvarez’ statements should have been excluded and

the conviction overturned.

We reject appellant’s argument. The cases cited by

appellant—for example, United States v. Silverman,

861 F.2d 571, 576-80 (9th Cir. 1988), and United

States v. Paris, 812 F.2d 471, 475-76 (9th Cir. 1987)

27a

—involved the admission of a co-conspirator’s out-

of court statements. In both Silverman and Paris,

the Ninth Circuit merely stated that a co-conspirator’s

out-of-court statements, standing alone, are insuffi-

cient to establish that defendant had knowledge of

and participated in a conspiracy. In this case, how-

ever, Alvarez testified directly and extensively at ap-

pellant’s trial as a government witness. Thus, he was

at all times available for cross-examination by ap-

pellant.

Moreover, to the extent that the government did

make use of some hearsay evidence—Captain Stuart

Smith testified about several telephone conversations

he and a government informant had with Alvarez—

appellant at no time objected to the evidence on hear-

say grounds. This being so, we may not reverse the

district court unless the admission of such evidence

was plain error. See Fed. R. Crim. P. 52(b). Since

the co-conspirator whose declarations are in question

was a government witness at trial, subject to full cross-

examination by appellant on all relevant issues—in-

cluding the comments referred to in Captain Stuart’s

testimony—we cannot say that the admission of such

hearsay testimony seriously affected the fairness, in-

tegrity, or public reputation of appellant’s judicial

proceedings.

Finally, after reviewing the record, we find that

there was indeed independent evidence to support

appellant’s conspiracy conviction. For example, we

refer to evidence of an intercepted mailing between

Harold Jackson, a known drug purchaser, and appel-

lant containing $14,000 in cash. R. Vol. VI at 8-12.

Although appellant offered an explanation for this

evidence, we cannot say that it was unreasonable for

the jury to conclude that appellant was a conspirator

in the effort to traffic drugs between Florida and Salt

Lake City.

28a

lV. Are Conspiracy ty Distribute Cocaine (21

UUS.C. $846) and Possession of Cocaine with

[utent to Distribute (21 U.S.C. S S41) “Druy

Trafficking Crimes” as Contemplated by 18

U.S.C. § 942(c)?

According to 18 U.S.C. § 924(c) (1), “[w]hoever,

during and in relation to any crime of violence or

drug trafficking crime... uses or carries a firearm,

shall, in addition to the punishment provided for such

crime of violence or drug trafficking crime, be sen-

tenced to imprisonment for five years .... In the

case of his second or subsequent conviction under this

subsection, such person shall be sentenced to imprison-

ment for ten years.” * Appellant maintains that nei-

ther of his drug charges was sufficient to trigger a

$924 weapons charge. This is a fanciful and incor-

rect interpretation of both the statute and Tenth

Circuit caselaw.

According to § 924(c) (2), as it existed at the time

of the offenses in question, a drug trafficking crime

means “any violation of Federal law involving the

distribution, manufacture, or importation of any con-

trolled substance (as defined in section 102 of the

Controlled Substances Act (21 U.S.C. 802)).”* We

believe that both the possession and conspiracy

charges brought against defendant fit that definition

of “drug trafficking crime.” We note that such

“This section has since been amended, such that a second

or subsequent conviction under this subsection now carries a

twenty-year mandatory sentence.

‘This section has since been amended to define drug

trafficking crime as any “felony punishable under the Con-

trolled Substances Act (21 U.S.C. § 801 et seq.)....” The

Controlled Substances Act includes both §§ 841 and 846—the

two drug offenses brought against appellant here.

29a

charges have been used routinely as the basis for

$924(c) charges in the past. United States v.

McKinnell, 888 F.2d 669, 674 (10th Cir. 1989)

(‘Possession of a controlled substance with intent to

distribute ...is a valid predicate offense for section

924(c)(1)”); see United States v. Cardenas, $64

F.2d 152%, 1529 (10th Cir.) (section 846 and 841

(a) (1) convictions triggered §$ 924(c) conviction),

cert, denied, 491 U.S. 909 (1989). Since we are

aware of no cases to the contrary, and since appel-

lant’s position seems contrary to common sense and

common practice, we categorically reject appellants’

contention that ‘neither of [the] offenses is suffi-

ciently ‘involved’ with the dist[ribution], manufac-

ture, or importation of cocaine so as to bring them

within the definitional provisions of 18 U.S.C.

[$] 924(c)(2).” Appellant’s Brief at 22.

V. Was There Sufficient Evidence to Support Ap-

pellant’s Conviction for “Use” of a Firearm

During a Drug Trafficking Crime?

Appellant next contends that there was no evidence

to suggest that the firearms seized from his apart-

ment were “used” or “carried” during or in relation

to the alleged drug trafficking crimes, as required

under § 924(c). He argues that “[b]oth ‘uses’ and

‘carries’... are active verbs implying direct physical

action,” Appellant’s Brief at 26, and that mere pos-

session is insufficient to support a conviction under

the statute. He further argues that there was never

any evidence presented at trial as to who controlled

the guns—himself or Mr. Alvarez.

As noted above, appellate review of this issue re-

quires the court to consider, in the light most favorable

to the prosecution, all the evidence presented at trial

and any reasonable inferences drawn therefrom.

30a

United States v. Frank, 901 F.2d 846, 848 (10th Cir.

1990). Based on our thorough review of the record,

we think there was sufficient evidence to support the

convictions.

The Tenth Circuit, like most other circuits, has

recognized that

a defendant can “use” a firearm within the

meaning of $ 924(c) (1) without firing, brand-

ishing, or displaying it. ... [T]he “uses” ele-

ment of $ 924(c)(1) is met when the defendant

has “ready access” to the firearm and the fire-

arm “was an integral part of his criminal under-

taking and its availability increased the likeli-

hood that the criminal undertaking would suc-

ceed.”

Mckinnell, 888 F.2d at 674-75 (emphasis added)

(citations omitted). In this case, the firearms at issue

were found in appellant’s bedroom, in the same apart-

ment where over half a kilogram of cocaine mixture

was stored. Many circuits have held that this kind of

physical proximity, coupled with the understanding

that guns have become tools of the drug trade, is

enough to support a jury’s inference that the guns

played an integral role in appellant’s criminal enter-

prise. See United States v. Torres, 901 F.2d 205, 241-

46 (2d Cir.) (gun stored under mattress in a room

containing drugs could reasonably be considered an

integral part of defendant’s criminal undertaking

since it might have served to protect the cocaine and

cash stored in the apartment), cert. denied, 111 S. Ct.

273 (1990); United States v. Alvarado, 882 F.2d

645, 653-54 (2d Cir. 1989) (jury could reasonably

infer that guns locked in safe were there to protect

money and drugs in the event drug deal went sour,

thus implicating §924(c)(i)), cert. denied, 110

3la

S. Ct. 1114 (1990) ; United States v. Matra, 841 F.2d

837, 839, 841-43 (8th Cir. 1988) (not unreasonable

to infer that machine gun hidden under frame of

waterbed served to protect defendant’s cocaine and

cash and was therefore “used” in relation to drug

trafficking crime); United States v. LaGuardia, 774

F.2d 317, 319-20 (&th Cir. 1985) (evidence of

weapons found with cocaine and cash sufficient to

support jury finding of §924(c) violation, even

though some of the weapons were not in the actual

possession of the defendant).

In United States v. Martinez, 912 F.2d 419, 420

(10th Cir. 1990), this court upheld a § 924(c) (1)

conviction where the police “found an unloaded re-

volver, currency, and over $40,000 worth of cocaine

in a closed briefcase in” defendant’s room. The court

cited a string of cases from other circuits upholding

similar convictions. E.g., United States v. Munoz-

Fabela, 896 F.2d 908, 911 (5th Cir.) (“It is enough

that the firearm was present at the drug-trafficking

scene, that the weapon could have been used to protect

or facilitate the operation, and that the presence of

the weapon was in some way connected with drug

trafficking.”), cert. denied, 111 S. Ct. 76 (1990).

In this case, the presence of the weapons at the

scene was bolstered by testimony that appellant and

his ‘“‘partner” had been previously robbed of their

cocaine. That, plus the fact that the weapons were

displayed to at least one cocaine customer, supports

the inference that the guns were an integral part of

appellant’s criminal undertaking, used to protect both

money and drugs. Although there was testimony pre-

sented at trial for the proposition that the guns were

obtained from drug purchasers merely as collateral

for future payments, we cannot say that it was un-

reasonable for a jury to infer that appellant used the

32a

weapons to facilitate his drug trade. This is espe-

cially true in light of the fact that appellant retained

possession of the weapons for at least three months

and was carrying another weapon at the time of his

arrest. Appellant’s insistence that there was no evi-

dence presented at trial as to who controlled the guns

—both Mr. Alvarez and appellant lived in the same

apartment—is unpersuasive. Fingerprint evidence

established that appellant handled at least two of the

ammunition clips for the Mini-14 rifle. In addition,

Mr. Alvarez’ testimony gave the jury sufficient

grounds on which to base their conzlusion that appel-

lant did in fact control the weapons.

We therefore find that it was not unreasonable for

the jury to conclude, as it did, that appellant used the

weapons in the commission of a drug trafficking

offense.

VI. Was Appellant Improperly Sentenced on Mul-

tiple Convictions When They All Related to

a Single Criminal Episode?

Appellant was sentenced on four separate counts:

one count for possession with intent to distribute

cocaine and aiding and abetting therein; one count

for conspiracy to possess cocaine within intent to

distribute; and two counts for use of a firearm dur-

ing a drug trafficking crime. He now maintains that

it was error to charge and sentence him separately

when all counts arose out of the same criminal

episode. The government counters that possession

with intent to distribute and conspiracy to distribute

cocaine are separate crimes, each requiring an ele-

ment the other does not. The government further

argues that the separate gun convictions were proper

since each alleged a violation involving a single fire-

33a

arm used in relation to a single and separate drug

trafficking crime.

In United States v. Henning, 906 F.2d 1392, 1399

(10th Cir. 1990), cert. denied, 111 S. Ct. 789 (1991),

we held that ‘‘where a defendant has been convicted

of a single drug trafficking offense and more than

one firearm was involved, a single violation of § 924

(c)(1) occurs and multiple consecutive sentences

may not be stacked to account for each firearm

seized.”’ Obviously the district court was mindful of

Henning when it sentenced appellant on just two of

the four § 924(c)(1) convictions. However, in eval-

uating appellant’s sentence, we must now decide

whether two consecutive sentences under § 924(c)

may be applied where a defendant has been convicted

of two drug trafficking offenses which arise out of

the same criminal episode or operative facts and

where a different gun is paired with each drug

trafficking offense. Although several other circuits

have endorsed the assessment of multiple § 924(c)

penalties to separate underlying offenses charged in

the same indictment, none of these cases confronted

the specific facts facing us here. See United States

vu. Bennett, 908 F.2d 189, 194-95 (7th Cir.), cert.

denied, 111 S. Ct. 534 (1990); United States v.

Foote, 898 F.2d 059, 668-69 (8th Cir.), cert. denied,

111 S. Ct. 112, cert. denied, 111 S. Ct. 342 (1990);

United States v. Rawlings, 821 F.2d 1543, 1545-46

(11th Cir.), cert. denied, 484 U.S. 979 (1987).

Rather, each involved several “distinct”? transactions,

“oecurr[ing] on... different dates and... requir-

[ing] proof of different sets of facts.” Bennett, 908

F.2d at 194. In resolving this case of first impres-

sion, we look for guidance to our own case of United

States v. Chalan, 812 F.2d 1302, 1315-17 (10th Cir.

1987), cert. denied, 488 U.S. 983 (1988), in which

34a

we held that multiple firearms counts are proper if

the underlying multiple offenses do not constitute a

single offense for double jeopardy purposes.

In Chalan, defendant was convicted of felony mur-

der while committing a robbery. He was also con-

victed of robbery and two counts of 924(c) (use of a

firearm in the commission a crime of violence). Al-

though sentenced concurrently on the murder and

robbery charges, defendant was sentenced to consecu-

tive sentences for the weapons charges. Defendant

appealed his weapons sentences, contending that the

crimes underlying the 924(c) convictions were really

one offense. We agreed and held that “fulnder the

Blockburger [v. United States, 284 U.S. 299 (1932),]

analysis, the underlying crimes in this case constitute

a single offense for double jeopardy purposes, and a

single ‘crime of violence’ within the meaning of sec-

tion 924(c).” Chalan, 812 F.2d at 1317. |

Like the defendant in Chalon, the appellant here

asserts that the crimes underlying his two $ 924(c)

sentences were in fact a “single criminal transaction.”

Id. In order to evaluate this assertion, we must apply

the test set forth by the Supreme Court in Bloc/:-

burger. According to Blockburger, ‘“‘the test to be ap-

plied to determine whether there are two offenses or

only one, is whether each provision requires proof of

a fact which the other does not.” Blockburger, 284

U.S. at 304. Unlike the robbery and felony-murder

charges at issue in Chalan, we think that the offenses

charged here do in fact constitute separate offenses.

As the Ninth Circuit and others have noted,

[a]s a general rule, a substantive charge, and

conspiracy charge based on the _ substantive

charge, pass muster under the Blockburger test

and retain their separateness. The reason for

35a

this is because a requirement for a conspiracy

conviction is proof of an agreement which is not

necessary to prove an underlying substantive

count. And, conviction on the substantive count

will require the consummation of the crime,

which, of course, is not essential for completing

the crime of conspiracy.

United States v. Wylie, 625 F.2d 1371, 1381 (9th

Cir. 1980) (citations omitted), cert. denied, 449 U.S.

1080 (1981). The Wylie court concluded that “Con-

gress did intend to allow the courts to impose consecu-

tive sentences for conspiracy (21 U.S.C. § 846), and

for substantive offenses (21 U.S.C. § 841(a)(1)),

even when the proof necessary to obtain a conviction

for the former was necessary to obtain a conviction

for the latter offense.” Jd. at 1382 (footnote omitted).

The Tenth Circuit followed the Wylie court in United

States v. Espinosa, 771 F.2d 1382, 1402-03 n.27 (10th

Cir.), cert. denied, 474 U.S. 1023 (1985), concluding

that “[t]he district judge here could have sentenced

defendants to consecutive sentences [on § 841 and

§ 846 charges].”

The fact that appellant’s possession conviction was

based on the aiding and abetting statute does not alter

this calculus. Several circuits have held that con-

spiracy to commit a crime with another is a separate

and distinct offense from that of aiding and abetting

and involves the additional element of preconcert and

connivance not necessarily inherent in the mere joint

activity common to aiding and abetting. United

States v. Goff, 847 F.2d 149, 175 (5th Cir.) (“It is

well established that conspiracy to commit a crime

and the crime itself are separate punishable offenses.

It is also well established that conspiracy and aiding

and abetting are separate punishable offenses.”’)

(citations omitted), cert. denied, 488 U.S. 932

36a

(1988); United States v. Peterson, 524 F.2d 167, 174

(4th Cir. 1975), cert. denied, 423 U.S. 925, cert.

denied, 423 U.S. 1088 (1976); United States vt.

Cowart, 595 F.2d 1023, 1029-30 (Sth Cir. 1979);

United States v. Krogstad, 576 F.2d 22, 29 (3rd Civ.

1978); United States v. Townes, 512 F.2d 1057, 1058

(6th Cir.), cert. denied, 423 U.S. 846 (1975). The

Tenth Circuit reached this very result in United

States v. Jackson, 482 F.2d 1167, 1176 (10th Cir.

1973), cert. denied, 414 U.S. 1159 (1974):

The law is well settled that commission of a sub-

stantive offense and a conspiracy to commit it

are separate crimes. The substantive offense of

illegally importing heroin into the United States

requires no more than one person for its commis-

sion. Similarly, aiding and abetting does not re-

quire an agreement .... The essence of a con-

spiracy charge is an agreement to commit an

offense against the United States. Whether [de-

fendants] were convicted as principals or for

aiding and abetting, it is clear their conviction

does not rest on the agreement. Thus the of-

fenses in Count One [illegal importation of

heroin or aiding and abetting therein] require

proof not essential to the conspiracy conviction.

[citations omitted ]

Based on these holdings, we conclude that the con-

spiracy and possession charges were separate offenses,

and therefore separate “drug trafficking crimes”

within the meaning of § 924(c). Since section 924(c)

imposes additional sentences for “crimes” which have

been committed with a weapon, and since the drug

trafficking crime statutes referenced in section 924(c)

(2) acknowledge the possibility that the same act or

transaction may result in the violation of two or more

distinct statutory provisions, we think it was appro-

37a

priate for the district court to sentence appellant on

two separate § 924(c) charges. Such a result is con-

sistent with Blockburger, Espinosa, and Chalan.

VII. Does Appellant’s Sentence Violate the Eighth

Amendment?

Appellant maintains that the vast disparity be-

tween his sentence and that of his co-defendant, Mr.

Alvarez, constituted an Eighth Amendment viola-

tion. Appellant received a sentence of 380 months

imprisonment; * Alvarez received only 60 months. As

authority for this argument, appellant cites a Ne-

braska Supreme Court case (State v. Garcia, 345

N.W.2d 826 (Neb. 1984)). Appellant’s Brief at 40.

As we noted in United States v. Sardin, 921 F.2d

1064, 1067 (10th Cir. 1990),

The sentencing guidelines incorporate the prin-

ciples of equality and proportionality. Their

purpose is to narrow the “disparity in sentences

imposed ... for similar criminal conduct by simi-

lar offenders.” Guidelines Ch. 1, Pt. A.3. The

guidelines mandate the sentencing court to con-

sider “the need to avoid unwarranted sentence

disparities among defendants with similar rec-

ords who have been found guilty of similar con-

duct.” 18 U.S.C. § 3553(a) (6). We have spe-

cifically recognized and endorsed this principle.

United States v. Jackson, 921 F.2d 985, 987-989

> We note that as a result of our en banc decision in this

case, see United States v. Abreu, F.2d (10th Cir.

Nos. 89-4145, 89-5166, 89-5337, filed April 13, 1992) (en

banc), appellant’s sentence on Count IV for 120 months

(based on section 924(c)) is being vacated and his case is

remanded for resentencing on that count to the unenhanced

sentence of 60 months (five years).

oo

38a

(10th Cir. 1990) (en bane); see also United

States v. White, 893 F.2d 276, 278 (10th Cir.

1900)...

However, “[w]hile similar offenders engaged in simi-

lar conduct should be sentenced equivalently, dispar-

ate sentences are allowed where the disparity is ex-

plicable by the facts on the record.” United States v.

Goddard, 929 F.2d 546, 550 (10th Cir. 1991) (em-

phasis added) (citations omitted). In this case, ap-

pellant has failed to designate a record which would

enable us to evaluate the appropriateness of his sen-

tence. Specifically, we are unable to review the pre-

sentence report or any testimony made at the sen-

tencing hearing. Moreover, we have virtually no in-

formation regarding the sentencing of Mr. Alvarez;

we do not know the full charges contained in his in-

dictment nor his criminal history nor the sentencing

court’s assessment of his cooperation and or accept-

ance of responsibility.” That being so, we cannot say

that appellant’s sentence was unjustified. See United

States v. Jimenez, 928 F.2d 356, 364 (10th Cir.),

cert. denied, 112 S. Ct. 164 (1991). Given appellant’s

failure to specify the source of the disparity and the

details of the record, we affirm the sentence imposed

by the district court.

* Alvarez’ testimony at trial indicates that he pled guilty to

charges of conspiracy and distribution of one-half ounce of

cocaine. The government moved to dismiss all other charges

and agreed to inform the sentencing court of the ful! extent

and value of Alvarez’ cooperation with the United States. No

more information could be gleaned from the record. R. Vol.

III at 48-49.

39a

VIII. Did the Trial Court Properly Impose an

Enhanced Ten Year Sentence for One of

Appellant’s Convictions Under 18 U.S.C.

§ 924(¢e) as a “Second or Subsequent Con-

viction” 2

Appellant contends that the district court erred in

imposing an enhanced ten-year sentence for appel-

lant’s gun conviction on Count IV pursuant to the

second sentence of section 924(c)(1). We agree.

Our en hane decision in this ease, handed down

concurrently with this panel decision, holds that “a de-

fendant may not receive an enhanced sentence under

924(c) for a second or subsequent conviction unless

the offense underlying this conviction took place after

a judgement of conviction had been entered on the prior

offense.” United States v. Abreu, F.2d

(10th Cir. Nos. 89-4145, 89-5166, 89-5773, filed April

15, 1992) (en banc). Because that was not the case

here, we concluded that “Abreu... [was] improperly

viven fan] enhanced sentence [|] for [a] sentence or

subsequent [sic] conviction[] under section 924(c)”

Id. We therefore reversed appellant’s enhanced sen-

tence of ten years under Count IV and remanded for

resentencing. On resentencing, the court should im-

pose only a five-year on Count IV as is provided in

the first sentence of section 924(c) (1).

IX. Should the Trial Court Have Suppressed Fvi-

dence of a 9 MM Handgun Found in Defend-

ant’s Automobile at the Time of His Arrest?

Appellant challenges the admission of evidence

showine that he was in possession of a loaded pistol

when arrested. The handgun was uncovered immedi-

ately after defendant had left his apartment where

the cocaine and other firearms were later found by

40a

agents executing a search warrant. After a bench

conference outside of the presence of the jury, the trial

court found that the evidence was probative as to de-

fendant’s intent, knowledge, and use of the weapons

found in his bedroom. Finding that the “probative

value of the evidence outweigh[ed] the prejudiciai

effect,” R. Vol. II at 69-71, the trial court allowed

the evidence. In evaluating the trial court’s admis-

sion of evidence, we are bound to uphold the trial

court unless we find an abuse of discretion. See United

States v. Keys, 899 F.2d 983, 987 (10th Cir.) (de-

cision whether to exclude evidence as being unfairly

prejudicial is one for which trial judge is particularly

well-suited), cert. denied, 111 S. Ct. 160 (1990). The

trial court is given broad discretion in determining

whether evidence is relevant and whether the proba-

tive value of the evidence outweighs any unfair preju-

dice to the defendant. We find no abuse of discretion

here.

Although appellant contends that there was “never

any showing that the[re] was any connection between

the 9 mm. handgun and the drug trafficking charges,”

Appellant’s Brief at 45, we believe that the handgun

was indeed relevant to defendant’s “possession,

knowledge and ownership of the firearms found in

the bedroom in the apartment.” R. Vol. II at 70.

Faced with almost identical circumstances in United

States v. Sullivan, 919 F.2d 1403 (10th Cir. 1990),

this court agreed with several other circuits that “‘fire-

arms are generally admissible in a drug conspiracy

trial because thev are ‘tools of the trade’ for those

engaged in illegal drug activity.” Jd. at 1420 (cita-

tions omitted). Although we noted that such a broad

proposition must not “substitute for a more detailed

case-hy-case analysis under Federal Rules of Evi-

4la

dence 401 and 403,” id., we were persuaded that the

admission of the weapons was proper. We reach the

same conclusion here.

In this case, we think the handgun may indeed have

been relevant to determining whether the guns seized

in the bedroom were merely collateral or protection

for appellant’s drug trade. Although we agree with

appellant that such evidence may have carried the po-

tential for jury prejudice, we cannot say that it was

error for the district court to conclude that “the pro-

bative value of the evidence outweighs the prejudicial

effect ....” R. Vol. II at 71. Moreover, we note that

the prejudicial effect of such evidence might have been

further minimized by a jury instruction limiting the

use of the handgun. However, appellant never re-

quested such an instruction, either at the time the evi-

dence was admitted or at the conclusion of the case.

He has accordingly waived this aspect of the issue.

Since we cannot say that it was an abuse of discre-

tion for the trial court to allow evidence and testmiony

of the 9 mm. handgun, we affirm the trial court.

X. Should the Trial Court Have Suppressed Evi-

dence and Testimony Concerning Appellant’s

Subsequent Mississippi Convictions?

Appellant maintains that the trial court erred by

allowing testimony regarding appellant’s subsequent

possession of a controlled substance in Mississippi. He

asserts that the effect of such evidence was to preju-

dice and to inflame the jury against him. We once

again review the district court’s admission of evidence

under the abuse of discretion standard.

tule 404(b) of the Federal Rules of Evidence al-

lows for the admission of evidence of ‘other crimes,

motive, intent, preparation, plan, or identity. Rule

42a

404(b) does not specifically exclude acts subsequent to

the incident or incidents giving rise to the charyes in

the indictment. United States v. Hogue, 827 F.2d

660, 663 (10th Cir. 1987). In fact, we have allowed

evidence of subsequent crimes where it is similar

to the crime charged or possesses some “signature

quality.” United States ». Gutierrez, 696 F.2d 753,

755 (10th Cir. 1982), cert. denied, 461 U.S. 909,

cert. denied, 461 U.S. 910 (1983). In this case, the

government sought to introduce testimony revarding

:.ppellant’s possession of cocaine in Mississippi. The

government argued that such evidence was “sig-

nificant because it shows not only was the defendant in

possession of a large quantity of cocaine within [the]

last two months after he escaped from this jurisdic-

tion but that he was doing so in association and in con-

junction with a fellow family member of a much

younger age than himself... in the same manner that

he enlisted Mr. Alvarez.” R. Vol. III at 162-63. The

government asserted that the Mississippi cocaine pos-

session was relevant to “show the defendant’s plan,

opportunity, knowledge and intent in regard to the

eurrent charges.” Jd. at 163. The district court

agreed and held that “the evidence is relevant... and

the probative value outweighs the prejudicial value.”

Id. at 164. We cannot say that that ruling was an

abuse of discreticn. Moreover, we note that the gov-

ernment was careful to avoid any reference to appel-

lant’s conviction on the Mississippi charges. They

offered testimony only as to appellant’s possession and

“modus operandi” in Mississippi: it was the defense

which revealed to the jury the facts of appellant’s con-

viction. We therefore affirm the trial court’s eviden-

tiary ruling on this matter.

43a

XI. Did the Trial Court Properly Sentence Ap-

pellant Under the Sentencing Guidelines?

Appeliant finally charges that the district court

misapplied the federal sentencing guidelines in im-

posing his sentence. Specifically, appellant contends

that the district court erred in sentencing him for

bringing into Utah “in excess of five kilograms of

cocaine to sell or distribute.”” Appellant’s Brief at

53. He further contends that he was wrongly sen-

tenced as an “organizer and leader.” Jd. at 54. Lastly,

appellant asserts that the district court wrongly ap-

plied the sentencing guidelines criminal history cal-

culus. We find that the sentence imposed by the dis-

trict court was appropriate.

In the first place, we note that a sentencing court

may look beyond the charges alleged in the indict-

ment in imposing a sentencing. United States v.

Smith, 929 F.2d 1453, 1459 (10th Cir.) (“[Q]uan-

tities and types of drugs not specified in the charge

with which defendant stands convicted are to be in-

cluded in determining the base offense level ‘if they

were part of the same course of conduct or part of

a common scheme or plan as the count of convic-

tion.’”’) (citations omitted), cert. denied, 112 S. Ct.

146 (1991). In this case, the evidence presented at

trial adequately supported the trial court’s finding

that appellant had brought more ‘ian five kilograms

of cocaine into Utah as part of the overall conspiracy.

See fh. Vol. [V at 68, Testimony of Alvarez. The evi-

dence of appellant’s role as an organizer and leader

was also sufficiently established at trial. See R. Vol.

IV at 52-56; R. Vol. III at 125-26. Appellant’s final

assertion, that it was error for the court to consider

his Mississippi conviction in determining his criminal

history level since that conviction occurred after the

44a

commission of Utah crimes, is incorrect as a matter of

law. In fact, the Tenth Circuit considered this very

issue in United States v. Fortenbury, 917 F.2d 477,

179 (10th Cir. 1990), and concluded that subsequent

criminal conduct occurring before sentencing for an

earlier offense is a permissible basis for departing up-

ward by criminal history category. Moreover, be-

cause appellant failed to designate the record on sen-

tencing, we cannot evaluate the district court’s con-

sideration of criminal history in any further detail.

We therefore affirm the district court’s sentence as to

these particular issues.

CONCLUSION

For the reasons given in this panel decision and in

the en bane decision in this case issued concurrently

herewith, we AFFIRM the district court in all par-

ticulars except as to appellant’s consecutive sentence

of 120 months on Count IV. As to that particular

sentence, we REVERSE and REMAND for resen-

tencing in accordance with our decisions.

BROWN, District Judge, dissenting:

For the reasons set for in the dissent in the en banc

decision in United States v. Abreu and United States

v. Thoribrugh (Nos. 89-4145, and 89-5166, 89-5173),

F.2d , I must respectfully dissent.

45a

APPENDIX C

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Nos. 89-5166

89-5173

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE, CROSS-APPELLANTS

Vv.

JAMES DAVID THORNBRUGH,

DEFENDANT-APPELLANT, CROSS-APPELLEE

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 89-CR-67-B )

[Filed Apr. 13, 1992]

Before HOLLOWAY, BRIGHT,* and SEYMOUR,

Circuit Judges.

* Honorable Myron H. Bright, United States Circuit Judge

for the Eighth Circuit, sitting by designation.

46a

SEYMOUR, Circuit Judge.

James David Thornbrugh was convicted of three

counts of armed bank robbery in violation of 18

U.S.C. $$ 21138(a) & (d) (1988), and three related

counts of possession of firearms during the commis-

sion of a crime of violence under 18 U.S.C. § 924

(c)(1) (1988). On appeal, Thornbrugh raises sev-

eral challenges to his conviction and also contends

that his sentence was improperly enhanced under sec-

tion 924(c). The court on its own motion ordered

rehearing en bane in this case and in United States

v. Abreu, No. 89-4145, limited to consideration of the

proper interpretation of the enhancement prevision

in section 924(c)(1). Accordingly, Thornbrugh’s

sentencing argument is addressed in the en banc opin-

ion of this court, filed simultaneously with this opin-

ion. See United States v. Abreu, F.2d

(10th Cir. Nos. 89-4145, 89-5166, 89-5173, filed

April 13, 1992). Here we resolve the remaining is-

sues Thornbrugh raises with respect to his conviction.

He claims that: (1) the prosecutor’s remarks during

closing arguments violated his due process rights;

(2) newly discovered evidence merits a new trial;

(3) the government wrongly withheld exculpatory

evidence; (4) the prosecution improperly alluded to

his prior bank robbery convictions; and (5) the cu-

mulative errors at trial require reversal. We con-

clude that these assertions do not require reversal of

his conviction.

L.

FACTS

Thornbrugh was indicted on three counts of armed

bank robbery and three related gun charges. The in-

dictment filed against him specifically charged the

47a

robberies of Local American Savings & Loan on Jan-

uary 6, 1989, of Continental Federal Savings & Loan

Association on January 24, 1989, and of Village

South National Bank on March 11, 1989. He was

also charged with three counts of carrying a firearm

in relation to a crime of violence, referring to the

three robberies charged in the first part of the indict-

ment.

The government’s key witness at trial was Thorn-

brugh’s accomplice, Gary Sewell, who had pled guilty

to two of the three bank robberies. Sewell testified

that in each robbery he stood by the door as Thorn-

brugh jumped over the teller counter and emptied

the bank’s registers. Sewell also testified that in each

robbery Thornbrugh selected the bank to rob, supplied

the guns (a .357 Wesson and a .380 Browning), and

shouted orders for everyone to get on the floor. Sewell

said that during each robbery he and Thornbrugh

wore gloves and masks made from stockings.

Proof at trial revealed the following chronology

with respect to the crimes. On January 6, 1989,

Sewell and Thornbrugh traveled to Local American

Savings & Loan in Thornbrugh’s Chevrolet pickup

and parked it two to three blocks away. After rob-

bing the bank in less than three minutes, they ran

behind a shopping center, climbed over a fence, and

ran past a mail carrier. Upon arriving at Thorn-

brugh’s pickup, they drove away followed by the mail

carrier, at whom Thornbrugh pointed a gun.

On January 21, 1989, Sewell and Thornbrugh

traveled to the Continental Federal Savings & Loan

in Sewell’s silver Camaro. As before, they were in

the bank for under three minutes. They left in the

Camaro, which Thornbrugh drove to his pickup in a

parking lot. He then left in his truck, taking the

money, guns, and masks. Meanwhile, Sewell drove

48a

the Camaro to the Falls Apartments, where he was

to meet Thornburgh to split money. A police officer

questioned Sewell at the apartments. Upon searching

the Camaro, the police officer found Thornbrugh’s

boots, belt, wallet, and driver’s license. Sewell was not

arrested at that time.

On March 11, 1989, Sewell and Thornbrugh robbed

the Village South National Bank. They drove to the

bank in a brown Ford Pinto Sewell bought to use in

the bank robbery, and robbed the bank following the

same plan as before. After the robbery, Thornbrugh

drove the Pinto to a Ford LTD which they had parked

in the general neighborhood of the bank. Special

Agent McDade, United States Secret Service, and

Larry Choate, president of Village South National

Bank, had pursued the robbers at a distance following

the robbery. Sewell put the money, guns, and masks

in the trunk of the LTD and dropped Thornbrugh off

at his pickup. Both McDade and Choate observed the

license tag on the back of the pickup truck which

Thornbrugh drove off. They recalled*the license tag

as Kansas number CU—-151. They chose to follow

Sewell, and he was subsequently arrested.

After Sewell’s arrest, several items were recovered

from the Ford LTD including a Browning .380 auto-

matic, a Don Wesson .357 revolver, two nylon stocking

masks, two pairs of brown gloves, one black and one

blue baseball cap, items of personal clothing, and

$1,647.00 in cash. On March 15, FBI Agent Jo

Deatherage was present at Thornbrugh’s home during

his arrest. She observed a Chevrolet pickup parked in

the driveway, with a Kansas license tag number, CUI-

151.

Several eyewitnesses to each of the robberies testi-

fied and offered descriptions of the robber who took

49a

the cash. Most of the eyewitnesses recalled that the

robber was approximately six-feet tall, although some

descriptions placed the robber between five-ten and

six-feet. Thornbrugh is about six-two. No eyewit-

ness except Sewell placed Thornbrugh at the scene of

any of the robberies. Thornbrugh offered several alibi

witnesses, including his father, co-workers, employer,

and his employer’s wife, all of whom confirmed

Thornbrugh’s alibis for each of the robberies.

Thornbrugh was convicted on all counts under 18

U.S.C. $$ 2113(a) & (d) and 924(c). On the three

robbery counts, the district court sentenced Thorn-

brugh as a career offender with a total offense level of

34 and a criminal history level of VI. The imprison-

ment range at that level is from 262 to 327 months.

With respect to the gun charges, the district court con-

strued section 924(c) to require mandatory sentences

of five years on the “first” count (count four), and en-

hanced sentences of twenty years for each “second or

subsequent conviction” under section 924(c) (counts

five and six). Thornbrugh therefore received an ad-

ditional forty-five years on the section 924(c) gun

charges. When added to the guideline range of 262

to 327 months, the additional forty-five years pro-

duced a possible sentence range of 802 to 867 months.

The court departed downward based on its conclusion

that the Sentencing Commission did not adequately

consider “the effect of the cumulative sentence of 45

years mandatory ... [as it] relates to the minimum

guideline range required on Counts 1, 2 and 3.” Rec.,

vol. XII, at 16. It therefore departed downward to a

total of 543 months imprisonment. 7d. at 16.’

1Jn the en banc opinion filed this day, we hold that the

court erred in construing section 924(c) to require enhance-

ment for second or subsequent convictions under the circum-

50a

I.

PROSECUTOR'S REMARKS DURING

CLOSING ARGUMENT

Thornbrugh contends that his right to a fair trial

was denied by the prosecution’s inappropriate com-

ments during closing arguments. Thornbrugh alleges

prosecutorial error in the following exchange:

“Mr. Lunn [defense counsel]: Well, what about

the problems with Sewell? There are plenty of

them. He changed his statements numerous times.

You've heard that he has made many deals dur-

ing the course of his life. It’s terrible to think

that a man with five felony convictions can

possibly—

Mr. Baker [prosecution]: If Your Honor

please, that is an absolute untruth. The man said

he had two felony convictions. This is misquot-

ing the record. I object to it.

Mr. Lunn: The man has—

Mr. Baker: Just a minute, please.

The Court: Ladies and gentlemen, you heard

the evidence on that subject. I’m [sic] leave it to

you to recall it. Proceed.

Mr. Lunn: The man has pled guilty three

times to bank robbery, and he has pled guilty

twice to burglary.

Mr. Baker: That again is untrue, Your Hon-

or, and I ask you again to admonish this man to

quit lying to the jury. He said he had been con-

victed twice. He pled guilty to two bank rob-

stances here. A remand for resentencing is therefore neces-

sary. Accordingly, we do not address the government’s cross-

appeal alleging error in the downward departure.

5la

beries and not three. That’s the record in the

case. Please admonish this man to stop lying.

The Court: You heard the evidence, ladies

and gentlemen. Proceed.”

Ree., vol. X at 696-697.

Defense counsel did not object to these comments

when they were made. We will therefore reverse only

for “plain error.” United States v. Young, 470 U.S.

1, 13-14 (1985); United States v. Lonedog, 929 F.2d

568, 570 (10th Cir. 1991). “Plain error is ‘funda-

mental error, something so basic, so prejudicial, so

lacking in its elements that justice cannot have been

done.’ /d. (quoting United States v. Henning, 906

F.2d 15392, 1397 (10th Cir. 1990) ).

Although attacks on defense counsel may consti-

tute prosecutorial misconduct warranting reversal,

the prosecutor’s comments here were responsive to

defense counsel’s statements. See Young, 470 U.S. at

12. As we have stated previously: “[T]he fact that

the prosecutor was responding to defense counsel’s

closing argument did not give him carte blanche to

make improper statements. But the fact that the

statement was part of a response and not part of a

general attack on defense counsel lessened its effect.”

United States v. Lowden, 900 F.2d 213, 216 (10th

Cir. 1990) (citation omitted). The substance of the

prosecutor’s objection expressed no opinion on the

question of Thornbrugh’s guilt. Compare United

States v. Rios, 611 F.2d 1335, 1343 (10th Cir. 1979)

(disapproving prosecutor’s expression of personal be-

lief in defendant’s guilt), cert. denied, 452 U.S. 918

(1981). Furthermore, the prosecutor’s statement

that the record reflected that Sewell had two prior

felony convictions, not five, had a factual basis. Com-

pare Rios, 611 F.2d at 1542-43 (unfounded remarks

52a

held prejudicial error) ; see also rec., vol. VIII, at 353

(evidence of Sewell’s convictions at trial). The likeli-

hood of prejudice was minimized by the district

court’s admonition to the jury prior to closing that

closing arguments are “not evidence in the case at

all.” Rec., vol. X, at 667; see United States v. Elizey,

936 F.2d 492, 498 (10th Cir. 1991) (residual prej-

udice arising from prosecutor’s comments in closing

eliminated by court’s limiting instruction). Under

these circumstances, we cannot find plain error.

The prosecutor also stated in his rebuttal remarks

during closing:

“Mr. Baker: While [defense counsel] was talk-

ing about this license tag that Agent McDade and

Jo Deatherage said they didn’t have any trouble

reading, I wonder why he didn’t explain to you

who tampered with evidence in a federal crimi-

nal case and mutilated this license tag. He

omitted somehow to teil you that, didn’t he?”

Rec., vol. X at 699. Mr. Lunn objected to this state-

ment, contending that “there has been no evidence of

[tampering] whatsoever.” /d. at 699-700. His ob-

jection was overruled. Jd. at 700.

Because this comment was the subject of an objec-

tion, we assess it under the harmless error standard.

See Lonedog, 929 F.2d at 572; see also United States

v. Alexander, 849 F.2d 1293, 1296 (10th Cir. 1988) ;

United States v. Tayler, 800 F.2d 1012, 1018 (10th

Cir. 1986), cert. denied, 484 U.S. 838 (1987).

“To determine whether defendants have been de-

prived of a fair trial, we must view the improper

remark in the context of the entire record before

the jury. We will not overturn the convictions

unless the prosecutor’s misconduct ‘was enough

58a

to influence the jury to render a conviction on

grounds beyond the admissible evidence pre-

sented.’ ”’

United States v. Espinosa, 771 F.2d 1882, 1401 (10th

Cir.), cert. denied, 474 U.S. 1023 (1985) (citations

omitted). In evaluating whether a prosecutor’s com-

ment had an impermissible effect on the jury’s de-

liberations, we consider: ‘‘ ‘the curative acts of the

district court, the extent of the misconduct, and the

role of the misconduct within the case as a whole.’ ”’

Lonedog, 929 F.2d at 572 (quoting United States v.

Martinez-Nava, 838 F.2d 411, 416 (10th Cir. 1988) ).

We conclude there was no reversible error with

respect to the comments made during the prosecu-

tion’s rebuttal. Although defense counsel contends

that the statements “implicate[] Mr. Lunn [defense

counsel] with tampering with evidence,” Appellant’s

Opening Brief at 26, our reading of the record con-

vinces us that this oblique reference to the alteration

of the license tag number was not such as “‘to influence

the jury to render a conviction on grounds beyond the

admissible evidence presented.” Espi sa, 771 F.2d

at 1401. In light of the strength of the evidence pre-

sented by the government in this case, if the state-

ment was error, it was harmless.

ITI.

DENIAL OF MOTION FOR NEW TRIAL

A motion for a new trial is not regarded with fa-

vor and should only be granted with great caution.

United States v. Kelley, 929 F.2d 582, 586 (10th

Cir. 1991): United States v. Page, 828 F.2d 1476,

1478 (10th Cir.), cert. denied, 484 U.S. 989 (1987).

The denial of such a motion is addressed to the sound

discretion of the trial court. Jd.

he

54a

A. Newly Discovered Evidence

Thornbrugh first argues that the district court err-

ed in denying his motion for a new trial based on two

instances of newly discovered evidence. Thornbrugh’s

new evidence consists of a statement by Woody Wood-

ward that he sold the .857 Wesson to Gary Lynn

Sewell, and the existence of two witnesses to the South

National Bank robbery who would provide exculpat-

ing descriptions of the bank robber.

Thornbrugh argues that the trial court abused its

discretion in denying his new trial motion without an

evidentiary hearing. However, the district court im-

plicitly assumed that the evidence was true and con-

sidered its impact on the outcome at trial. Rec., supp.

vol. II, doc. 58 at 7-8. No evidentiary hearing to de-

termine credibility was therefore necessary. See

United States v. Ramsey, 726 F.2d 601, 605 (10th

Cir. 1984).

In order for new evidence to merit a new trial, it

“must be more than impeaching or cumulative; it

must be material to the issues involved; it must be

such as would probably produce an acquittal; and a

new trial is not warranted by evidence which, with

reasonable diligence, could have been discovered and

produced at trial.” Page, 828 F.2d at 1478 (cuoting

United States v. Allen, 554 F.2d 398, 403 (10th Cir.),

cert. denied, 434 U.S. 836 (1977)). Under this

standard, we are not persuaded that the district court

erred in denying the new trial motion on the basis of

new evidence.

With respect to the statement of Woody Wood-

ward, the district court stated in its order denying

a new trial that the new evidence would, at best, raise

the possibility that Sewell used this gun in the rob-

bery rather than a gun supplied to Sewell by Thorn-

55a

brugh. Rec., supp. vol. II. doc. 58 at 7. The evidence

would therefore be cumulative as to Thornbrugh’s

denial of any participation in the robberies and im-

peaching as to Sewell’s testimony that Thornbrugh

supplied both guns for the robberies. /d. The court

also said “having heard all the evidence, that this pos-

sibility of additional cumulative and impeachment evi-

dence would not produce (and would not have pro-

duced), in all probability, acquittal.” Jd. at 7-8.

Given the record in this case and the district court’s

careful consideration of the impact that the new evi-

dence would have had on the outcome, we conclude

there was no abuse of discretion in denying a new

trial based on the statement of Woody Woodward.

The district court similarly concluded that the testi-

mony of the two identification witnesses did not merit

granting the motion for a new trial:

“TS]uch testimony ... would have been cumula-

tive as to the robbers being white males and im-

peaching as to the lack of beards and gray or

graying hair of either of the suspects. It is clear

Defendant’s hair is predominantly dark, not

gray. Neither witness nor both in the Court’s

estimation, would produce or would have pro-

duced, probably, an acquittal.”

Id. at 8. Again, our review of the record and the dis-

trict court’s order indicates that the court carefully

considered the probable impact of the new evidence

under the appropriate legal standard and committed

no abuse of discretion by denying the new trial on the

basis of new evidence.

56a

B. Withholding Exculpatory Evidence

Thornbrugh also contends that a new trial is war-

ranted because exculpatory evidence was withheld by

the government. ‘‘[T]he suppression by the prosecu-

tion of evidence favorable to an accused upon request

violates due process where the evidence is material

either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” Page,

828 F.2d at 1479 (quoting Brady v. Maryland, 373

U.S. 83, 87 (1963), and adding emphasis). Sup-

pressed evidence is deemed material “ ‘if there is a

reasonable probability that, had the evidence been dis-

closed to the defense, the result of the proceeding

would have been different. A ‘‘reasonable probabil-

ity” is a probability sufficient to undermine confi-

dence in the outcome.’” Jd. (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985) (Blackmun, J. joined

by O’Connor, J.)). In making this determination, we

view the suppressed evidence’s significance in relation

to the record as a whole. United States v. Wolf, 839

F.2d 1387, 1391 (10th Cir.), cert. denied, 488 U.S.

923 (1988).

Thornbrugh contends that the government sup-

pressed the testimony of Agent Deatherage in viola-

tion of his due process rights, thus entitling him to a

new trial. According to Thornbrugh, Agent Deather-

age gave conflicting descriptions of the pickup used in

connection with the rcbberies in two separate affida-

vits. Agent Deatherage’s affidavit dated March 13,

1989, described the truck identified by Agent McDade

on March 11 as a “white GMC pickup with a Kansas

tag.” Ree., Supp. Vol. IJ, doc. 45, exh. B. Agent

Deatherage’s affidavit dated Anri! 12, 1989 stated

that McDade observed a “tan and white Chevrolet

pickup with a Kansas tag CU —-151.” /d. at exh. C.

57a

Thornbrugh also contends that the prejudice arising

from this alleged suppression was compounded by the

fact that Agent Deatherage did not recall preparing

the separate affidavits and denied any inconsistencies

between descriptions of the truck.

The alleged suppression arising out of Agent Dea-

therage’s conduct does not merit a new trial because

it does not raise a “reasonable probability” of a dif-

ferent result. Page, 828 F.2d 1479. The district

court concluded that it is unlikely the comparison of

the two affidavits at trial would have affected the out-

come because “these affidavits ... are far more in

harmony than in conflict.” Rec., supp. vol. II, doc. 58

at 5. As explained by the district court:

“The Court is aware and the record supports the

very similar appearance of Chevrolet and GMC

pickup vehicles, both being General Motors prod-

ucts. A later description of a ‘GMC pickup’ as

being a ‘Chevrolet pickup’ is not, in the Court’s

mind, a serious variance. The pickup’s color

(white, later described in greater detail as tan

and white) is more of an enlargement of descrip-

tion rather than a discrepancy. The license tag

was more fully described to include the tag num-

ber as reported by Agent McDade. There is no

discrepancy whatsoever as to the tag in the Dea-

therage affidavits.”

Id. at 5-6 (footnote omitted).

The district court also relied on the availability at

trial-of the two affidavits to defense counsel in reject-

ing Thornbrugh’s claim that exculpatory evidence

was wrongly withheld. |

“The two affidavits were available to Defendant

during trial. If Defendant considered the two

Deatherage affidavits sufficiently conflicting it

58a

was incumbent upon him, through his counsel, to

utilize the same during trial for impeachment

purposes. Defendant argues the later affidavit

was not “introduced into evidence because it al-

ledged that Defendant Thornbrugh had_ been

picked up because of a parole violation.’ The

affidavit, in redacted form, was available for use

but was not used—a tactical choice within the

Defendant’s control.”

Id. at 6. The district court’s conclusion in this re-

spect is consistent with our decisions establishing

that there is no violation of a defendant’s right with

respect to production of exculpatory evidence when

such evidence is available at trial. See United States

vu. Behrens, 689 F.2d 154, 158 (10th Cir.), cert.

denied, 459 U.S. 1088 (1982); United States v.

Alberico, 604 F.2d 1315, 1319 (10th Cir.), cert. de-

nied, 444 U.S. 992 (1979).

Thornbrugh also contends that the government

withheld exculpatory evidence by failing to provide

the defense with the correct escape route of the rob-

bery suspects and the fact that there were two wit-

nesses along the escape route, Darlene Slotterback

and Darlene Rudner. The district court held that the

testimony of the two new witnesses was cumulative,

and that in light of the record it would not have cre-

ated a reasonable probability of a different outcome.

There was no abuse of discretion in denying the mo-

tion for a new trial on the basis of this “withheld” *

evidence, because such evidence was not exculpatory.

* We note that there is no clear evidence in the record that

the government actually suppressed the correct escape route

or the witnesses’ statements. On appeal, the government

maintains that “the names and addresses of the [witnesses]

were never supplied to the government by any investigating

agency.” Government Brief at 36-37.

59a

Finally, Thornbrugh contends that exculpatory

fingerprint evidence was improperly withheld. The

record nowhere indicates that the prints would be

exculpatory. In the absence of any support for the

contention that the fingerprints constitute exculpa-

tory evidence, we are precluded from reversing the

district court’s denial of a new trial based on the

suppression of this evidence.

IV.

REFERENCE TO DEFENDANT'S

PRIOR CONVICTIONS

Thornbrugh asserts that his right to a fair trial

was compromised because the prosecution’s witness,

Gary Sewell, implied that Thornbrugh was an ex-

perienced bank robber by unfairly alluding to his

prior convictions. The exchange at trial during de-

fense counsel’s cross-examination of Sewell was as

follows:

“(Mr. Lunn] You weren’t so to speak, led

by a leash by your accomplice with regard to

doing this robbery?

“TMr. Sewell] I was told by my accomplice

what to get and what to do. I’m not a bank

robber. I don’t know how.

“Mr. Lunn] All right. I’d like to ask you

questions about the second robbery... .”

Rec., vol. IX, at 442-43. The trial transcript reveals

that there was no objection to Sewell’s remark. The

alleged error is therefore reviewed under a _ plain

error standard. See Lonedog, 929 F.2d at 570. Ac-

cordingly, we will not reverse unless the statement

60a

constituted ‘something ... so prejudicial . . . that

justice cannot have been done.” /d.

Sewell’s statement was not sufficiently prejudicial

to constitute plain error. As the district court con-

cluded in its order denying the new trial, “the state-

ment made by... Sewell... was not prejudicial to

Defendant’s case, in that it makes no reference, by

insinuation or otherwise to Defendant’s prior record.”’

Rec., supp. vol. II, doc. 58, at 4. We agree that

Sewell’s comment did not highlight Thornbrugh’s

prior convictions. Other cases where mistrials were

requested suggest that, given the nature of Sewell’s

comment, a new trial is not warranted. See, e.y.,

United States v. Kendall, 766 F.2d 1426, 1437 (10th

Cir. 1985) (testimony that defendant had sold air-

plane to pilot who had used it in earlier drug smug-

gling venture), cert. denied, 474 U.S. 1081 (1986);

United States v. Walton, 552 F.2d 1354, 1365-66

(10th Cir.) (testimony that defendant interviewed

by FBI while in jail on another matter), cert. de-

nied, 431 U.S. 959 (1977); United States v. Wood-

ring, 446 F.2d 733, 737 (10th Cir. 1971) (testimony

that defendant subject of unrelated criminal charge).

Thornbrugh contends that the error should be

deemed prejudicial when one considers that the Gov-

ernment’s case against Thornbrugh was a relatively

weak one. Our review of the record, however, con-

firms the conclusion of the district court that there

was more than sufficient evidence for the jury to re-

turn a guilty verdict. Ree., supp. vol. II, doc. 58, at

8; compare United States v. Sands, 899 F.2d 912,

915-16 (10th Cir. 1990).

6la

V.

CUMULATIVE ERROR

Thornbrugh argues that even if no individual error

warrants reversal, the cumulative effect of the errors

at trial do. In United States v. Rivera, 900 F.2d

1462, 1469 (10th Cir. 1990) (en banc), cert. denied,

111 S. Ct. 2249 (1991), we stated that: ‘The cumu-

lative effect of two or more individually harmless er-

rors has the potential to prejudice a defendant to

the same extent as a single reversible error.” The

purpose of a cumulative error analysis is to address

that possibility.

In this case, the district court explicitly stated in

denying Thornbrugh’s motion for a new trial that:

“In sum, the Court restates it heard all of the

evidence, viewed the demeanor of all of the wit-

nesses, considered all of the exhibits and heard

all the argument and concludes there was more

than ample evidence upon which the jury based

its verdict. There was solid corroborative evi-

dence in support of accomplice Sewell’s testi-

mony.”

Rec., supp. vol. II, doc. 58 at &. Our own review of

the record also bears out the conclusion that the al-

leged errors and prosecutorial misconduct, viewed in

the aggregate, did not have a prejudicial effect on the

jury’s verdict.

In sum, we AFFIRM Thornbrugh’s convictions.

However, we hold today in our en banc opinion that

Thornbrugh’s sentence was improperly enhanced for

a second or subsequent conviction under section 924

(c). Such an enhancement is only proper when the

underlying offense was committed after a judgment

62a

of conviction on the prior section 924(c) offense. See

United States v. Abreu, F.2d (10th Cir.

Nos. 89-4145, 89-5166, 89-5173, filed April —, 1992).

Accordingly, we REMAND for resentencing in light

of our en banc opinion.

W ov. S. GOVERNMENT PRINTING orrice; 1992 312324 45479