for the Fourth Circuit for the Fourth Circuit for the Fourth Circuit United States… v. Cornelius Douglas Studifin

PUBLISHED PUBLISHED PUBLISHED PUBLISHED
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4012
CORNELIUS DOUGLAS STUDIFIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CR-99-190)
Argued: December 4, 2000
Decided: February 16, 2001
Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge Niemeyer and Judge Traxler joined.
_________________________________________________________________
COUNSEL COUNSEL COUNSEL COUNSEL
ARGUED: ARGUED: ARGUED: ARGUED: Lisa Kim Lawrence, LAWRENCE & ASSOCIATES,
Richmond, Virginia, for Appellant. James Brien Comey, Jr., Assistant
United States Attorney, Richmond, Virginia, for Appellee. ON ON ON ON
BRIEF: BRIEF: BRIEF: BRIEF: D. Scott Gordon, LAWRENCE & ASSOCIATES, Rich-
mond, Virginia, for Appellant. Helen F. Fahey, United States Attor-
ney, Stephen W. Miller, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
_________________________________________________________________

-- 1 of 16 --

OPINION OPINION OPINION OPINION
WILLIAMS, Circuit Judge:
Cornelius Studifin was convicted in the United States District
Court for the Eastern District of Virginia of interfering with interstate
commerce by robbery in violation of 18 U.S.C.A.§ 1951(a) (the
Hobbs Act) (Count I); using a firearm in furtherance of a crime of
violence in violation of 18 U.S.C.A. § 924(c) (Count II); and posses-
sion of a firearm by a convicted felon in violation of 18 U.S.C.A.
§ 922(g)(1) (Count III). The district court sentenced Studifin to two
180-month concurrent terms, along with a mandatory minimum 84-
month term to be served consecutively to his other sentences for his
violation of § 924(c). On appeal, we initially address a sentencing
issue of first impression in this Circuit -- Studifin's argument that his
sentence violates the Double Jeopardy Clause because the 1998
amendments to § 924(c) preclude consecutive terms of imprisonment
whenever another provision of law carries a greater mandatory mini-
mum sentence than that imposed under § 924(c). We also address
Studifin's other double jeopardy claims, as well as Studifin's chal-
lenges to the sufficiency of the evidence supporting his convictions.
Finding no error, we affirm.
I.
On March 28, 1999, a black male wearing a burgundy and gold
Washington Redskins cap and a black Oakland Raiders jacket robbed
the Community Pride grocery store in Richmond, Virginia. The rob-
ber, whose face was masked by a dark stocking, placed a black bag
with a cigarette logo and a silver firearm on the counter and
demanded money from the clerk. The robber took approximately
$200.
Shortly after the robbery, Officer Michael Tunstall noticed a black
male wearing a burgundy and gold Redskins cap and a black Raiders
jacket who was carrying a black bag in his hands and running through
the Community Pride parking lot. Tunstall followed him. After losing
sight of him for a few moments, Tunstall caught up to the man as he
stood near a section of bushes. As Tunstall asked the man for identifi-
cation, the radio dispatch reported the robbery, including a description
2

-- 2 of 16 --

of the robber and the fact that the robber was armed with a silver
handgun. Upon hearing the description of the robber, Tunstall
arrested the man, who was later identified as Studifin. Tunstall
inspected the area of bushes where Studifin had been standing and
found a blue nylon stocking, $196 in cash, and a black bag with a cig-
arette logo. Tunstall and another officer then searched for the firearm
and recovered a silver Rohm .22 caliber gun approximately fifteen to
twenty-five yards from the area in which Tunstall first confronted
Studifin. After the arrest, Detective Clyde Fisher questioned Studifin,
who waived his Miranda rights, admitted using the firearm, and
described the robbery.
The jury convicted Studifin on all counts and the district court sen-
tenced him to two 180-month concurrent terms for Counts I and III.
The district court also sentenced Studifin to the mandatory minimum
84 months for Count II, to be served consecutively with the other sen-
tences. Studifin also received a three-year-term of supervised release
for each conviction.
Studifin challenges his sentence and convictions on appeal. First,
Studifin argues that his sentence constitutes double jeopardy because
§ 924(c) and § 924(e) punish the same conduct and because the 1998
amendments to § 924(c) prohibit the imposition of a mandatory con-
secutive sentence pursuant to § 924(c) where the mandatory minimum
sentence from another provision of law is greater than the mandatory
minimum consecutive sentence under § 924(c). Second, Studifin chal-
lenges his convictions on sufficiency of the evidence grounds. We
address each issue in turn.
II.
We first address whether Studifin's sentence violates the Double
Jeopardy Clause. Where the issue is solely that of multiple punish-
ment, as opposed to multiple prosecutions, "the Double Jeopardy
Clause does no more than prevent the sentencing court from prescrib-
ing greater punishment than the legislature intended." United States
v. Luskin, 926 F.2d 372, 377 (4th Cir. 1991) (internal quotation marks
omitted); see also United States v. Johnson, 32 F.3d 82, 84 (4th Cir.
1994) ("B. Johnson") ("Although the bar on double jeopardy restrains
the executive and judicial branches, it leaves the legislature basically
3

-- 3 of 16 --

untouched."). In United States v. Johnson, 219 F.3d 349 (4th Cir.) ("S.
Johnson"), cert. denied, 121 S. Ct. 593 (2000), we described the test
for Double Jeopardy in the context of multiple punishments for the
same conduct: "The same conduct can support convictions and sen-
tencing under two different federal statutes as long as each statute
requires proof of an element that the other does not." Id. at 358. "If
the elements of the two statutes do not necessarily overlap, then mul-
tiple punishments are presumed to be authorized absent a clear show-
ing of contrary Congressional intent." S. Johnson, 219 F.3d at 359
(internal quotation marks omitted). We review questions of double
jeopardy de novo. See United States v. Brown, 202 F.3d 691, 703 (4th
Cir. 2000).
A.
Studifin argues that the imposition of a mandatory minimum con-
secutive sentence pursuant to § 924(c) constitutes double jeopardy
because § 924(c) and § 924(e) punish essentially the same conduct,
possession of a firearm during a robbery.1111 We disagree. It is clear that
_________________________________________________________________
1111 Section 924(e), often called the Armed Career Criminal statute, pro-
vides for a mandatory minimum fifteen-year sentence for a "person who
violates section 922(g) . . . and has three previous convictions" for vio-
lent felonies or serious drug offenses. 18 U.S.C.A.§ 924(e) (West 2000).
Section 924(e) provides that
[i]n the case of a person who violates section 922(g) of this title
and has three previous convictions by any court . . . for a violent
felony or a serious drug offense, or both, committed on occa-
sions different from one another, such person shall be fined not
more than $25,000 and imprisoned not less than fifteen years,
and, notwithstanding any other provision of law, the court shall
not suspend the sentence of, or grant a probationary sentence to,
such person with respect to the conviction under section 922(g).
18 U.S.C.A. § 924(e).
Section 924(c), by contrast, requires a mandatory minimum consecu-
tive sentence of five years or more for persons who use a firearm "in
relation to any crime of violence or drug trafficking crime." 18 U.S.C.A.
§ 924(c) (West 2000). Section 924(c) provides in pertinent part:
(c)(1)(A) Except to the extent that a greater minimum sentence
is otherwise provided by this subsection or by any other provi-
4

-- 4 of 16 --

§ 924(c) and § 922(g) each requires proof of an element that the other
does not. Section 922(g)(1) requires proof (1) that the defendant had
been previously convicted of a crime punishable by imprisonment for
a term exceeding one year; (2) that the defendant knowingly pos-
sessed, transported, shipped, or received, the firearm; and (3) that the
possession of the firearm was in or affecting interstate commerce
because the firearm had traveled in interstate or foreign commerce at
some point during its existence.2222 See United States v. Langley, 62
_________________________________________________________________
sion of law, any person who, during and in relation to any crime
of violence or drug trafficking crime (including a crime of vio-
lence or drug trafficking crime that provides for an enhanced
punishment if committed by the use of a deadly or dangerous
weapon or device) for which the person may be prosecuted in a
court of the United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in addi-
tion to the punishment provided for such crime of violence or
drug trafficking crime--
(i) be sentenced to a term of imprisonment of not less than 5
years;
(ii) if the firearm is brandished, be sentenced to a term of impris-
onment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.
18 U.S.C.A. § 924(c).
2222 We compare the elements of § 922(g) to the elements of § 924(c)
because the elements of § 922(g) are subsumed within § 924(e). See 18
U.S.C.A. § 924(e) (West 2000) (stating that a violation of § 922(g) trig-
gers § 924(e) where the "person who violates section 922(g) . . . has three
previous convictions" for violent felonies or serious drug offenses). Sec-
tion 922(g) provides that
It shall be unlawful for any person--
(1) who has been convicted in any court of, a crime punishable
by imprisonment for a term exceeding one year;
. . .
to ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to
receive any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce.
18 U.S.C.A. § 922(g) (West 2000).
5

-- 5 of 16 --

F.3d 602, 606 (4th Cir. 1995) (stating elements of§ 922(g)). Section
924(c), by contrast, requires proof (1) that the defendant actively used
or carried a firearm; (2) during and in relation to his commission of
a crime of violence or drug trafficking crime. See United States v.
Mitchell, 104 F.3d 649, 652 (4th Cir. 1997) (stating elements of
§ 924(c)). Thus, violation of § 922(g) requires proof of an element
that § 924(c) does not, i.e., that the defendant was a previously con-
victed felon; and violation of § 924(c) requires proof of an element
that § 922(g) does not, i.e., active use or carrying of a firearm. "There-
fore, each statutory provision includes an element that the other does
not, and multiple punishments are presumed." S. Johnson, 219 F.3d
at 359; United States v. Garrett, 903 F.2d 1105, 1114-15 (7th Cir.
1990) (rejecting argument that because "sections 922(g) and 924(c)
constitute multiple punishments for the same criminal conduct--
possession of a firearm," consecutive sentences imposed for convic-
tions under both 18 U.S.C.A. §§ 922(g) and 924(c) violate the Double
Jeopardy clause); cf. United States v. Presley , 52 F.3d 64, 68 (4th Cir.
1995) (stating that the Armed Career Criminal Act"does not violate
the Double Jeopardy Clause").
B.
Studifin next argues that his sentence constitutes improper double
counting under the Guidelines because the district court both
enhanced his offense level under the Armed Career Criminal guide-
line, United States Sentencing Commission, Guidelines Manual,
§ 4B1.4 (Nov. 1998), and also imposed the statutory mandatory mini-
mum under § 924(c). Such double counting, however, is not per se
improper. See United States v. Crawford, 18 F.3d 1173, 1179-80 (4th
Cir. 1994) (stating that "triple counting" the same conduct under the
Guidelines "will be upheld unless it is expressly prohibited by the
guidelines" because "the guidelines should be applied as written"
(internal quotation marks omitted)); United States v. Sanders, 982
F.2d 4, 6-7 (1st Cir. 1992) (finding no impermissible double counting
where Sanders was convicted under § 922(g) and§ 924(c) and also
received an enhancement under U.S.S.G. § 4B1.4 as an armed career
criminal); see also 18 U.S.C.A. § 924(c)(1)(A) (providing that the
mandatory minimum sentence should apply even where the underly-
ing crime already "provides for an enhanced punishment if committed
by the use of a deadly or dangerous weapon or device"); cf. B. John-
6

-- 6 of 16 --

son, 32 F.3d at 86 ("[T]he penalty provision of § 924(c)(1) states that
the term of incarceration shall be `in addition to the punishment pro-
vided for such crime of violence.' This penalty provision further sup-
ports our view that Congress was well aware of the cumulative
sentencing effect of § 924(c)(1).").
Studifin points to U.S.S.G. § 2K2.4, which provides that "[t]o
avoid double counting, when a sentence under this section is imposed
in conjunction with a sentence for an underlying offense, any specific
offense characteristic for explosive or firearm discharge, use, or pos-
session is not applied in respect to such underlying offense." USSG
§ 2K2.4, comment. (backg'd). We note, however, that § 2K2.4's
admonitions were considered in calculating Studifin's sentence. The
presentence report indicates that Studifin's underlying robbery sen-
tence was calculated at a base offense level of 20, without the other-
wise applicable increase of 4 levels under § 2B3.1 for the specific
offense characteristic of firearm use. (See J.A. at 167.) The district
court used the presentence report's recommended base level to calcu-
late Studifin's sentence for Count I. (J.A. at 132 ("I find that the
defendant's base offense level for count one is 20 .. . .").)3333 Thus, the
district court did not violate § 2K2.4's prohibition against double
counting because it did not consider Studifin's firearm use in calculat-
ing the offense level for his robbery offense. See Sanders, 982 F.2d
at 7 (recognizing that "[h]ad defendant been separately charged with
the underlying drug offense, the application note would have directed
that defendant's use of a weapon not be considered in calculating the
offense level for the drug offense" but rejecting the argument that the
district court impermissibly double counted by "first raising his
offense level on the felon in possession count from 33 to 34 [pursuant
to § 4B1.4 as an Armed Career Criminal] and in then adding a mini-
mum five-year sentence to the felon in possession sentence [pursuant
to § 924(c)]" (emphasis added)). In other words, the district court did
not improperly double count when calculating Studifin's sentence.
_________________________________________________________________
3333 The presentence worksheet for Studifin's § 922(g) conviction also
explicitly recognizes that § 2K2.4 "prohibits the application of specific
offense characteristics applicable to the use of firearms in the underlying
offense of robbery." (J.A. at 169.)
7

-- 7 of 16 --

C.
Finally, Studifin argues that there is a "clear showing of contrary
Congressional intent" that defeats the presumption that multiple pun-
ishments are authorized. See S. Johnson, 219 F.3d at 359 ("If the ele-
ments of the two statutes do not necessarily overlap, then multiple
punishments are presumed to be authorized absent a clear showing of
contrary Congressional intent." (internal quotation marks omitted)).
This brings us to an issue of first impression in this Circuit: Do the
1998 amendments to § 924(c) "unambiguously evidence[ ] a legisla-
tive intent to avoid duplicative sentences where other provisions of
law satisfy the objectives of § 924(c) by imposing a mandatory sen-
tence [on] such conduct that is greater than the § 924(c) enhance-
ment?" (Appellant's Br. at 18-19.)
In Bailey v. United States, 516 U.S. 137 (1995), the Supreme Court
addressed the issue of how much the Government must show, beyond
mere possession, in order to establish "use" of the firearm for pur-
poses of § 924(c). The Bailey Court rejected the Government's
broader interpretation of the statute and concluded that "use" required
active employment of the firearm. See id. at 150. Accordingly, in
1998, Congress amended § 924(c) "to provide for increased manda-
tory minimum sentences for criminals possessing firearms and for
other purposes," H.R. Rep. 105-344, because it"was convinced the
Bailey decision was a setback for law enforcement and crime con-
trol." Paul J. Hofer, Federal Sentencing for Violent and Drug Traf-
ficking Crimes Involving Firearms: Recent Changes and Prospects
for Improvement, 37 Am. Crim. Law R. 41, 65 (2000); cf. United
States v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir. 2000) (noting
that, in the wake of Bailey, "Congress sought to broaden the statute"),
cert. denied, 121 S. Ct. 839 (2001). Prior to 1998, § 924(c) provided
that
"Whoever, during and in relation to any crime of violence
. . . (including a crime of violence . . . which provides for
an enhanced punishment if committed by the use of a deadly
or dangerous weapon . . .) for which he may be prosecuted
in a court of the United States, uses or carries a firearm,
shall, in addition to the punishment provided for such crime
8

-- 8 of 16 --

of violence . . . be sentenced to imprisonment for five years
. . . ."
B. Johnson, 32 F.3d at 85 (quoting 18 U.S.C.§ 924(c)(1) (West Supp.
1993)). Under that version of the statute, "[t]he five-year penalty must
run consecutively to any sentence imposed on the crime of violence
and is without parole." B. Johnson, 32 F.3d at 84. The current version
of § 924(c) provides, in pertinent part:
(c)(1)(A) Except to the extent that a greater minimum sen-
tence is otherwise provided by this subsection or by any
other provision of law, any person who, during and in rela-
tion to any crime of violence or drug trafficking crime
(including a crime of violence or drug trafficking crime that
provides for an enhanced punishment if committed by the
use of a deadly or dangerous weapon or device) for which
the person may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the punish-
ment provided for such crime of violence or drug trafficking
crime--
(i) be sentenced to a term of imprisonment of not less than
5 years;
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.
18 U.S.C.A. § 924(c) (West 2000) (emphasis added).
Studifin argues that the "[e]xcept to the extent" language in
amended § 924(c) prohibits the court from imposing § 924(c)'s man-
datory minimum consecutive sentence where the defendant is subject
to a higher mandatory minimum sentence pursuant to another provi-
sion of law.4444 The Eighth Circuit recently spoke on this issue in United
_________________________________________________________________
4444 Studifin's mandatory minimum consecutive sentence under § 924(c)
is seven years. See 18 U.S.C.A. § 924(c)(1)(A)(ii) (West 2000). Studifin
9

-- 9 of 16 --

States v. Alaniz, No. 00-1539, 2000 WL 1839321 (8th Cir. Dec. 15,
2000).5555
_________________________________________________________________
argues that because he also was subject to a fifteen-year mandatory mini-
mum sentence under § 924(e) as an Armed Career Criminal, he was
"sentenced to a mandatory [minimum] sentence for his firearm posses-
sion that was greater than the mandatory minimum sentence imposed by
§ 924(c)(1)(A)," and, thus, "the mandatory [consecutive] sentence of
§ 924(c)(1)(A) should not be invoked." (Appellant's Br. at 21.)
5555 The only other decision that we have found that addresses this issue
is an unpublished district court opinion, United States v. Baldwin, No.
1:99-CR-127-01, 1999 WL 1566472 (W.D. Mich. 1999). In Baldwin, the
district court rejected a similar argument, stating that "[t]he Court rejects
Defendant's interpretation of the statute because it is contrary to the plain
language used by Congress and the well-established purpose of provid-
ing an enhanced sentence for crimes of violence involving the use of fire-
arms." Id. at *1. Looking to the language of the statute as a whole, the
court stated that
Defendant's argument focuses solely upon the introductory lan-
guage of § 924(c) added by the 1998 amendment. While the
argument may be plausible when considered only in light of the
first twenty words of § 924(c)(1)(A), the argument fails when
considered in light of Congress' intent, as demonstrated by
§ 924(c)(1)(D)(ii), that persons who use or carry firearms during
the course of a crime of violence or a drug trafficking crime be
subject to enhanced penalties under § 924(c) through consecutive
sentences. Defendant's interpretation of § 924(c) would effec-
tively nullify Congress' intent to impose consecutive sentences by
requiring a defendant to be sentenced under either§ 924(c) or
the underlying crime of violence or drug trafficking, but not
both.
Id. at *2 (emphasis added). The court concluded that
the text of the amendment shows that Congress intended to
broaden, rather than restrict, the reach of the statute. Consistent
with the established purpose of § 924(c), the Court concludes
that the introductory phrase, "Except to the extent that a greater
minimum sentence is otherwise provided by this subsection or
any other provision of law," was intended to allow only for more
severe punishment where another statute provides for greater
consecutive sentencing.
Id. (internal citations omitted).
10

-- 10 of 16 --

In Alaniz, the Eighth Circuit reversed the district court's interpreta-
tion of the "greater minimum sentence" language in § 924(c) as "re-
ferring to any greater minimum sentence, including one for the
predicate drug crime," instead concluding that"[t]he amendment
refers only to a `greater minimum sentence' for the various types of
firearm-related conduct proscribed in § 924(c)(1)." Id. at *1. The
Alaniz court first noted that the "except to the extent" language
"doesn't alter the original statute's clear object of enhancing sen-
tences for predicate drug crimes or crimes of violence with consecu-
tive firearm sentences. Rather, Congress added the new phrase
because the statute's organizational structure changed." Id. at *3. The
Alaniz court stated that "[p]rior to the 1998 amendment, all possible
sentence lengths for the different types of firearm-related conduct
proscribed by the statute were found within an undivided subsection.
Likewise, all of the various sentence lengths for second or subsequent
convictions were contained within the same undivided subsection."
Id. However,
[a]fter the 1998 amendment, the various sentence lengths in
the statute are no longer set forth within an undivided sub-
section. The amendment preserves all of the old possible
sentence lengths, while adding two new gradations-- not
less than seven years for brandishing a firearm, and not less
than ten years for discharging a firearm -- further refining
the types of firearm-related conduct proscribed by the stat-
ute. Because of this increase in sentencing possibilities,
Congress divided what was already a lengthy subsection
into distinct subdivisions.
Subdivision (c)(1)(A) contains the statute's prefatory lan-
guage, the basic five-year sentence applicable to most fire-
arms, and the new sentences for brandishing or discharging.
Subdivision (c)(1)(B) now covers the sentence for short-
barreled rifles or shotguns and semiautomatic assault weap-
ons, plus the sentence for machineguns or silencers. Subdi-
vision (c)(1)(C) enumerates the possible sentences for
second or subsequent convictions.
Id. The Alaniz court found that"[c]omparing the old and new versions
of § 924(c)(1), it's apparent that Congress added the phrase `[e]xcept
11

-- 11 of 16 --

to the extent that a greater minimum sentence is otherwise provided
by this subsection' to link the remaining prefatory language in
(c)(1)(A) to each sentence length set forth in subdivisions (c)(1)(B)
and (c)(1)(C). Absent that linking phrase, the self-standing provisions
in (c)(1)(B) and (c)(1)(C) are grammatically and conceptually incom-
plete." Id. The Alaniz court therefore concluded that
we find no support for the proposition (advanced by the dis-
trict court) that subdivision (c)(1)(A)'s "greater minimum
sentence" clause applies to the predicate drug trafficking
crime or crime of violence of which a particular defendant
has been convicted. Subdivision (c)(1)(A)'s"greater mini-
mum sentence" clause refers only to the firearm-related
conduct proscribed either by § 924(c)(1) or"by any other
provision of law." The ten-year mandatory minimum drug
sentence at 21 U.S.C. § 841(b)(1)(A) does not govern
firearm-related conduct, and therefore does not fall within
subdivision (c)(1)(A)'s reference to "any other provision of
law."
Id. (emphasis added).
We agree with the Alaniz court that in light of the structure and lan-
guage of § 924(c)(1), it is clear that the"except to the extent" lan-
guage is designed to "link the remaining prefatory language in
(c)(1)(A) to" the other subdivisions. Alaniz , 2000 WL 1839321, at *3.
We also believe that the "any other provision of law" language pro-
vides a safety valve that would preserve the applicability of any other
provisions that could impose an even greater mandatory minimum
consecutive sentence for a violation of § 924(c). In other words, we
read this language as simply reserving the possibility that another stat-
ute or provision might impose a greater minimum consecutive sen-
tencing scheme for a § 924(c) violation, and not as negating the
possibility of consecutive sentencing in the circumstances of the pres-
ent case.
Indeed, in concluding that the 1998 amendments were not intended
to narrow the scope of § 924(c)'s mandatory consecutive sentencing
scheme, we note that Studifin's reading of § 924(c) would, in effect,
negate the imposition of mandatory consecutive sentences for more
12

-- 12 of 16 --

serious offenders who qualify as Armed Career Criminals,6666 but not for
less serious offenders who have committed fewer prior serious felonies.7777
This construction of § 924(c) simply makes no sense in light of Con-
gress's clear intent in § 924(c) to impose mandatory consecutive sen-
tences, as opposed to choosing between one or the other sentence, and
indeed would be patently inconsistent with the intent expressed in
§ 924(c)(1)(D)(ii) to require mandatory consecutive sentences against
those who commit crimes of violence while using or carrying firearms
in furtherance of their crimes.8888 Examining the statute as a whole, par-
_________________________________________________________________
6666 Under Studifin's reading of§ 924(c), an Armed Career Criminal
would still be subject to mandatory consecutive sentencing if he used a
machinegun or destructive device, used a silencer, or if he had previously
violated § 924(c). 18 U.S.C.A. § 924(c)(1)(B)(ii) & (C) (West 2000)
(imposing mandatory minimum consecutive sentences ranging from
twenty-five years to life).
7777 The implausibility of Studifin's broad reading of § 924(c) was simi-
larly noted by the Alaniz court in the context of whether the "except to
the extent" language applied where Alaniz was subject to a greater man-
datory minimum sentence for the underlying predicate offense than for
his violation of § 924(c):
The district court's interpretation, which deems the amendment's
mention of a "greater minimum sentence" to refer to a sentence
for the predicate crime, fails to give the statute a sensible con-
struction. That construction would punish those guilty of severe
offenses more leniently, and those guilty of less severe offenses
more stringently, an illogical result. The most serious drug
crimes and crimes of violence (those already carrying mandatory
minimum sentences) would not be enhanced by a consecutive
firearm sentence despite the fact that a gun was involved. Mean-
while, less serious crimes (to which no minimum mandatory sen-
tences apply) would be enhanced by a consecutive firearm
sentence when committed with a gun.
United States v. Alaniz, No. 00-1539, 2000 WL 1839321, at *3-4 (8th
Cir. Dec. 15, 2000).
8888 Section 924(c)(1)(D)(ii) provides:
(D) Notwithstanding any other provision of law --
. . . .
(ii) no term of imprisonment imposed on a person under this sub-
section shall run concurrently with any other term of imprison-
13

-- 13 of 16 --

ticularly in light of the language of § 924(c) and the purpose behind
the 1998 amendments, we do not believe that Congress intended to
narrow § 924(c) by eliminating mandatory consecutive sentences
where another provision imposes a higher mandatory minimum sen-
tence for conduct other than that described in § 924(c). For these rea-
sons, we reject Studifin's interpretation of § 924(c) and conclude that
Studifin's sentence does not constitute double jeopardy.9999
III.
We next address Studifin's challenges to his convictions on suffi-
ciency of the evidence grounds. Studifin argues that the district court
should have granted his motion for judgment of acquittal as to Count
I because the evidence was insufficient to establish that he possessed
a Rohm .22 pistol in violation of § 922(g)(1). Studifin also argues that
the evidence was insufficient to identify him as the robber for pur-
poses of Counts I and II. We review a challenge to the sufficiency of
the evidence to determine "`if there is substantial evidence, taking the
_________________________________________________________________
ment imposed on the person, including any term of
imprisonment imposed for the crime of violence or drug traffick-
ing crime during which the firearm was used, carried, or pos-
sessed.
18 U.S.C.A. § 924(c)(1)(D)(ii) (West 2000).
9999 Studifin also argues that at sentencing, the district court erred in fail-
ing to depart from the statutory mandatory minimum consecutive 84-
month sentence of § 924(c) because it mistakenly believed that it lacked
the discretion to do so. Studifin recognizes, however, that "[g]enerally,
a sentencing court may not depart below required mandatory minimum
sentences unless the government moves for such a departure based on
substantial assistance." (Appellant's Br. at 16.); see 18 U.S.C.A.
§ 3553(e) (West 2000) (granting the district court limited authority to
depart from the statutory mandatory minimum sentence where the gov-
ernment makes a motion based upon substantial assistance); cf. United
States v. Pillow, 191 F.3d 403, 407 (4th Cir. 1999) (recognizing that
§ 3553(e) permits departure from the statutory mandatory minimum sen-
tence based upon substantial assistance). Studifin's argument is not based
upon substantial assistance, but rather upon the idea that § 924(c)'s statu-
tory mandatory minimum consecutive sentence no longer applies to him
because of the 1998 amendments. In light of our rejection of Studifin's
reading of § 924(c), we find no merit to Studifin's argument.
14

-- 14 of 16 --

view most favorable to the Government, to support'" the criminal
conviction. United States v. Mitchell, 209 F.3d 319, 324 (4th Cir.)
(quoting Glasser v. United States, 315 U.S. 60, 80 (1942)), cert.
denied, 121 S. Ct. 123 (2000). "In reviewing the sufficiency of the
evidence, we are not entitled to weigh the evidence or to assess the
credibility of witnesses, but must assume that the jury resolved all
contradictions . . . in favor of the Government." United States v.
Romer, 148 F.3d 359, 364 (4th Cir. 1998) (internal quotation marks
omitted), cert. denied 525 U.S. 1141 (1999).
A conviction under § 922(g)(1) requires evidence (1) that the
defendant was a convicted felon at the time of the offense; (2) that he
voluntarily and intentionally possessed the firearm; and (3) that the
firearm traveled in interstate commerce at some point in time. See
United States v. Hobbs, 136 F.3d 384, 390 (4th Cir. 1998); 18
U.S.C.A. § 922(g) (West 2000). Studifin's basic argument is that
although the jury heard evidence that the silver firearm that the offi-
cers found in the field had traveled in interstate commerce, the jury
did not hear sufficient evidence to establish that the silver firearm
belonged to Studifin. Studifin argues that the firearm the officers
found was located fifteen to twenty-five feet away from Studifin, that
no fingerprints tied the weapon to Studifin, and that Officer Tunstall
had watched Studifin closely and yet had not seen Studifin with the
firearm. Studifin also argues that although Detective Fischer testified
that Studifin confessed to carrying the gun, Fischer's testimony was
uncorroborated and did not include a specific reference to the gun
found in the field. Studifin also asserts that although the cashier testi-
fied that she saw a silver gun, she could not describe the gun with any
specificity beyond its color.
The jury had ample evidence from which to convict Studifin on
this count. Indeed, the evidence, which sets forth a clear chain of
events linking Studifin with the firearm, clearly supports the conclu-
sion that Studifin possessed the weapon found in the field. For exam-
ple, the cashier told the police that the robber's face was masked with
a dark stocking, that he wore a black Raider's jacket, burgundy and
gold Redskin's hat, and had a silver handgun and a bag with a ciga-
rette logo on it, and the police dispatcher radioed this description to
the police on patrol. Tunstall saw Studifin, who matched this descrip-
tion, running across the Community Pride parking lot shortly after the
robbery. The police found the silver handgun nearby, as well as a blue
15

-- 15 of 16 --

nylon stocking, approximately $200 in cash, and a bag with a ciga-
rette logo on it. These items were found in the area where Tunstall
saw Studifin standing before Tunstall caught up to him. (J.A. at 71-
74.) Moreover, Fisher testified that Studifin confessed to the robbery
and to possessing the firearm. According to Fisher, Studifin explained
that he threw the gun to a different place than the money because he
"was trying for it not be found" and he "didn't want the gun charge."
(J.A. at 93.) Although Studifin challenges the credibility of Fisher's
testimony, "we are not entitled to weigh the evidence or to assess the
credibility of witnesses, but must assume that the jury resolved all
contradictions . . . in favor of the Government." Romer, 148 F.3d at
364 (internal quotation marks omitted). On this record, we have no
difficulty concluding that there was sufficient evidence to support
Studifin's conviction.
Likewise, sufficient evidence supports Studifin's convictions on
Counts I and III. Studifin argues that there was insufficient evidence
to show that Studifin was the perpetrator of the crime for purposes of
Counts I and III. He asserts that the cashier could not identify Studifin
as the robber because the robber wore a mask, the surveillance camera
did not show the robber at the counter, and the money was not actu-
ally found on Studifin, but instead was found nearby. As noted above,
however, not only did Fisher testify that Studifin confessed to the rob-
bery, but the evidence also established a chain of events that links
Studifin to the robbery. We find no merit to Studifin's arguments,
which boil down to an attack upon Fischer's credibility and the cir-
cumstantial nature of the remaining evidence. See Romer, 148 F.3d
at 364 (stating that credibility determinations and weighing of the evi-
dence are for the jury). We therefore affirm Studifin's convictions.
IV.
In conclusion, Studifin's sentence does not constitute double jeop-
ardy and, contrary to Studifin's arguments, the 1998 amendments to
§ 924 do not narrow the scope of § 924(c)'s mandatory consecutive
sentencing scheme by eliminating mandatory minimum consecutive
sentences for Armed Career Criminals. In addition, Studifin's convic-
tions on all counts were supported by sufficient evidence. We there-
fore affirm Studifin's convictions and sentence.
AFFIRMED
16

-- 16 of 16 --