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February 7, 2015
  United States v. Rentz-- Tenth Circuit
Case Name: United States v. Rentz -- Tenth Circuit

Headline: Tenth Circuit Rules Government Must Prove Multiple Instances of Use, Carry or Possession to Bring Separate Charges under 18 U.S.C. § 924(c)(1)(A)

Areas of Law: Criminal Law, Statutory Construction

Issue Presented:

Does 18 U.S.C. § 924(c)(1)(A) allow multiple charges to be brought against the defendant when it is agreed that there is only one single use, carry, or possession?

Brief Summary:

The Tenth Circuit held an en banc rehearing of the case to determine whether the government may bring multiple charges under 18 U.S.C. § 924(c)(1)(A), when a firearm is used only one time, but results in two crimes of violence. After engaging in a textual analysis of the statute and applying the rule of lenity, the majority held that the government would have to prove a separate "use, carry, or possession" of a firearm for each charge it brings. Judges Hartz and Matheson wrote concurring opinions, and Judge Kelly wrote a dissenting opinion.

Extended Summary:

Defendant Philbert Rentz used a gun one time, but after firing one shot, he hit and injured one victim and then hit and killed another victim. Thus, the use of the gun was "during and in relation to" two separate "crimes of violence" contrary to 18 U.S.C. § 924(c)(1)(A). Section 924(c)(1)(A) requires that five years be added on to the sentence imposed for the commission of the crime of violence if a gun is used "during and in relation to" a crime of violence or a drug trafficking crime.

Judge Gorsuch authored the majority opinion, and was joined by Judges Lucero, Tymkovich, Holmes, Bacharach and Moritz. The majority noted that federal courts have found this statute difficult to interpret, noting that Bailey v. United States, 516 U.S. 137 (1995), United States v. Castleman, 134 S. Ct. 1405 (2014), and United States v. Serafin, 562 F.3d 1105 (10th Cir. 2009), addressed questions related to the statute's interpretation, but had not yet addressed the issue presented in this case - what is the unit of prosecution? The court was presented with the question of whether Defendant Rentz may be charged with two violations of § 924(c)(1)(A) because he hit two victims, even though he only fired one shot.

The majority stated that the Second, Fifth, Seventh, and D.C. Circuits have stated that the government does need to prove a separate crime of using, carrying, or possessing a gun in order to bring separate charges under § 924(c)(1)(A). The Eighth Circuit, on the other hand, appears to have said no. The majority emphasized the importance of this decision, because it means the difference between Mr. Rentz receiving between 5 and 10 years for the § 924(c)(1)(A) charge, or a mandatory sentence of 25 years to life for the second charge in addition to the time he was sentenced for the first § 924(c)(1)(A) conviction. Further, all of this time is to be served consecutive to his sentences for the underlying assault and murder of the victims.

The court began by stating that there are a number of dilemmas presented by the variety of federal criminal offenses that are similar to Mr. Rentz's situation, citing to other federal cases with fact patterns that pose a § 924(c)(1)(A) question, and noted that the court has not clearly decided whether a separate "use, carry, or possession" is needed for each individual count under § 924(c)(1)(A).

The majority then discussed issues related to this case, stating that in Blockburger v. United States, 284 U.S. 299 (1932), the Supreme Court determined that the double jeopardy clause prohibited punishing a defendant under two different statutes for the same conduct unless the statutes each "requires proof of a fact with the other does not." The court noted that in previous cases, Tenth Circuit panels have rejected appeals arguing that double jeopardy also prohibits multiple punishments under a single statutory provision like § 924(c)(1)(A) when the single use of a gun results in two crimes. Previous panels have decided that if each underlying offense charged required proof of a fact that the other did not, the use of enhancement for the underlying gun crime was permissible.

The majority stated that this case is a unit of prosecution case, which discusses the "minimum amount of activity for which criminal liability attaches" for each charge under a single criminal statute. United States v. Cureton, 739 F.3d 1032, 1041 (7th Cir. 2014). This type of inquiry, the court explained, requires a thoughtful analysis of the verbs used in the statute. Because the statute requires that a person use, carry, or possess a firearm during the commission of certain offenses, the language suggests that each new conviction requires a new act that falls under using, carrying, or possessing. Further, the statute does not prohibit using, carrying, or possessing a firearm generally, which supports the idea that each new conviction requires a new act of using, carrying, or possessing. The majority also noted that the structure of the statute shows that you cannot have a number of charges that exceeds the number of uses, carries, or possessions.

The majority explained that the government's position is that it only has the burden to show using, carrying, or possessing as part of the first conviction. The majority stated that this view would require them to ignore language that is present in the statute for all charges except for the first one.

Next, the majority considered taking a broader view of the statute, but stated that doing so does not change the outcome. Section 924(c)(1)(C) provides specific instructions for cases involving multiple convictions, but it also does not appear to change the government's burden for convictions other than the first. Further, § 924(c)(1)(C) calls for a much greater sentence upon a second conviction than it does for a first. If Congress did not intend for the government to have to prove a second use, carry, or possession, then the leap in the mandatory sentence does not make sense.

The government stated that the legislative history of the statute is favorable to its position. It cited a paragraph in a 1984 committee report from when Congress amended the statute, which explicitly states that the sentences for violation of § 924(c)(1) are to be served consecutively with the underlying offense. The majority found this argument unpersuasive because it did not address the proper unit of prosecution or the language of the statute. The majority speculated that perhaps the government pointed to this to show that Congress meant for harsh sentences to result from violations of § 924(c)(1)(A), but the majority found no basis for that argument in the statute. In fact, the majority stated that one could make the argument that Congress intended to run sentences consecutive to the underlying offense because of the seriousness of making a conscious choice to use, carry, or possess a gun while committing specific crimes.

Further, the majority relied on the rule of lenity to resolve any ambiguities that remain in interpreting § 924(c)(1)(A), meaning that if the directions from the statute are unclear, the presumption is resolved in favor of the citizen, not the government. This keeps the power in the hands of the legislature as opposed to prosecutors, and also gives citizens fair warning of what types of conduct are against the law. The majority noted that the Supreme Court has applied the rule of lenity in similar situations, citing to Bell v. United States, 349 U.S. 81 (1955), addressing whether the transportation of multiple women for prostitution constituted multiple violations of federal law, or just one. It also cited to Ladner v. United States, 358 U.S. 169 (1958), where the court held that the single discharge of a weapon which injured two police officers should result in only one violation of law.

The majority also noted that in United States v. Anderson, 59 F.3d 1323, 1325 (D.C. Cir. 1995) (en banc), the government argued that the number of uses alone, not the number of predicate crimes limited the number of charges available - this argument is the exact opposite of what it argues here. The majority stated that if a statute is so obscure that even the government has been unable to maintain a consistent position, it is likely that citizens may lack notice about what conduct it prohibits.

Next the majority addressed the Eighth Circuit's holding in Sandstrom, where the Eighth Circuit did allow multiple charges after one gun use. However, the Eighth Circuit relied on reasoning from a Tenth Circuit panel which rejected a Blockburger challenge to multiple § 924(c)(1)(A) convictions. The majority explained that if the Eighth Circuit were presented with the same question that the Tenth Circuit addresses now, the Eighth Circuit would likely agree with the majority's reasoning in this case.

The majority acknowledged that a number of other questions regarding the statute's interpretation remain, but saves those questions for another day. Both sides concede that this case involves only one use, carry, or possession, so it is not necessary for the court to determine when one use, carry, or possession begins and another ends. The majority affirmed the ruling of the district court and vacated the previous opinion given by the panel.

Judge Hartz wrote a concurring opinion, and joined the concurrence of Judge Matheson. In the Hartz concurrence, Judge Hartz writes to express his belief that the government maintains a compelling position, but that it simply does not overcome the rule of lenity. Judge Hartz states that the language of § 924(c)(1)(A) in isolation is favorable to the government's position, but that this interpretation leads to very harsh consequences for a defendant, and that as a result, it should not be assumed that Congress intended the harshest possible consequence.

Judge Matheson also wrote a concurring opinion joined by Chief Judge Briscoe, and Judges Hartz and Phillips. His concurrence first discusses the difference between the elements of an offense and the unit of prosecution, the overlap between double jeopardy and unit of prosecution, the ambiguity of the statute regarding the unit of prosecution, the application of the rule of lenity, and the relationship between this case and Tenth Circuit precedent. Judge Matheson stated that charging two offenses based on one unit of prosecution is a violation of double jeopardy. The ambiguity of § 924(c) and the rule of lenity suggest that only one violation of the statute should be charged. Further, Judge Matheson stated that the court is less restricted by previous Tenth Circuit case law than the panel was, because it is an en banc hearing.

Judge Kelly issued a dissenting opinion in the case. Judge Kelly suggested that the unit of prosecution should be determined by the combination of the conduct specified in the statute. He stated that § 924(c) is a combination crime, because neither the underlying crime, nor the use of a gun is sufficient for a conviction. Judge Kelly stated that this fact is significant, and that the majority and concurring opinions should have given that fact greater weight. Further, Judge Kelly stated that the majority's concern that the government will overcharge is groundless, because the government's desire to bring multiple charges under § 924(c) is reasonable given the severity of the underlying offenses.

To read the full opinion, please visit:

Panel: Briscoe, Chief Judge, Kelly, Lucero, Hartz, Tymkovich, Gorsuch, Holmes, Matheson, Bacharach, Phillips and Moritz.

Date of Issued Opinion: February 3, 2015

Docket Number: No. 12-4169

Decided: Previous panel decision was vacated and the ruling of the district court was affirmed.


Diana Hagen, Assistant United States Attorney (Carlie Christensen, Acting United
States Attorney, with her on the brief), Salt Lake City, Utah, for Plaintiff-

Jeremy M. Delicino, Delicino Lorenzo, LLC (Elizabeth A. Lorenzo, Delicino
Lorenzo, LLC, Salt Lake City, Utah, and Stephen R. McCaughey of Salt Lake
City, Utah, with him on the brief), for Defendant-Appellee.

Author: Gorsuch

Case Alert Author: Ashley L. Funkhouser

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 02/07/2015 05:40 PM     10th Circuit  

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