for the Fourth Circuit for the Fourth Circuit for the Fourth Circuit United States… v. Jacob Harrison, Jr.

Filed: February 20, 2002
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Nos. 99-4417(L)
(CR-99-6)
United States of America,
Plaintiff - Appellee,
versus
Jacob Harrison, Jr., et al.,
Defendants - Appellants.
O R D E R
The court amends its opinion filed November 16, 2001, as
follows:
On page 4, first full paragraph, line 8 -- the end of the
paragraph is deleted, and is replaced with the following:
The district court did not clearly err in finding
Harrison could reasonably foresee that one of his armed
co-defendants might fire a weapon so as to create a risk
of serious bodily injury. The district court also did
not clearly err in finding Harrison aided and abetted
conduct that created a substantial risk of death or
serious bodily injury to the children in the getaway cars

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and the public during the high-speed flight that followed
the robbery. USSG § 3C1.2.
For the Court - By Direction
/s/ Patricia S. Connor
Clerk

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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. 99-4417
JACOB HARRISON, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4492
CASEY SEON BURNETT,
Defendant-Appellant.
Appeals from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-99-6)
September 27, 2001
Decided: November 16, 2001
Before MOTZ, KING, and GREGORY, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Judge Gregory wrote the majority
opinion, in which Judge King joined. Judge Motz wrote an opinion
concurring in the judgment.
_________________________________________________________________

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COUNSEL COUNSEL COUNSEL COUNSEL
ARGUED: ARGUED: ARGUED: ARGUED: Deborah R.J. Shupe, LOUTHIAN & LOUTHIAN,
Columbia, South Carolina, for Appellants. Alfred William Walker
Bethea, Assistant United States Attorney, Florence, South Carolina,
for Appellee. ON BRIEF: ON BRIEF: ON BRIEF: ON BRIEF: Timothy E. Meacham, JEBAILY, GLASS
& MEACHAM, P.A., Florence, South Carolina, for Appellant Harri-
son. J. Rene Josey, United States Attorney, Florence, South Carolina,
for Appellee.
_________________________________________________________________
OPINION OPINION OPINION OPINION
GREGORY, Circuit Judge:
Jacob Harrison, Jr. and Casey Seon Burnett each pled guilty to
armed bank robbery, 18 U.S.C.A. § 2113(a), (d) (West 2000), 18
U.S.C.A. § 2 (West 2000), and using or carrying a firearm in a crime
of violence, 18 U.S.C.A. § 924(c) (West 2000), 18 U.S.C. § 2 (1994).
For the bank robbery, Harrison was sentenced to a term of fifty-seven
months imprisonment, and Burnett received a sentence of eighty
months. Each received a ten-year consecutive sentence for the
§ 924(c) violation. Harrison contends that the district court erred in
sentencing him by making adjustments for assault on a law enforce-
ment officer during flight, U.S. Sentencing Guidelines Manual
§ 3A1.2(b) (1998), and reckless endangerment during flight, USSG
§ 3C1.2. Both appellants argue that the district court erred in sentenc-
ing them by making adjustments under § 3A1.2(b) and § 3C1.2 based
on the same conduct, and that the district court erred in sentencing
them to ten-year consecutive sentences for their firearm convictions
when neither was charged with violating § 924(c)(1)(B)(i). Burnett
further maintains that he received ineffective assistance of counsel at
sentencing. We affirm.
I.
On December 10, 1998, Harrison, Burnett, and Tabari Spann
robbed a bank in Marion, South Carolina. Harrison did not carry a
gun into the bank. Burnett and Spann carried the weapons, an alleged
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MAC-11 and a .38 caliber revolver. After the robbery, Harrison ran
to a waiting vehicle driven by Burnett's wife, Chundra Burnett. Bur-
nett and Spann ran to another waiting vehicle driven by Fredericka
Stanley. Four minor children, aged eight months to two years, were
also passengers in the cars. Police arrived quickly, and as the vehicles
left the parking lot adjacent to the bank, Spann fired the purported
MAC-11 at the pursuing officers from the passenger side window. A
high-speed chase followed, and both getaway cars crashed after flee-
ing for ten or twelve miles. No one was seriously injured.
In sentencing both Harrison and Burnett, the district court added
three offense levels under USSG § 3A1.2(b), finding Spann had
assaulted the police officers in a manner that created a substantial risk
of serious bodily injury by firing a gun at them. The court added
another two levels under USSG § 3C1.2, finding that the chase cre-
ated a danger of serious bodily injury to the children in the getaway
cars and to the public.
Harrison did not contest the enhanced sentence under § 924(c), but
Burnett did, arguing that the shots fired at the officers were not part
of the offense of conviction (the bank robbery). He also questioned
whether the MAC-11 charged in the indictment was a semiautomatic
assault weapon as defined in § 921(a)(30), which lists specific weap-
ons, not including the MAC-11. After hearing the testimony of a fed-
eral agent, the district court found that the firearm charged as a MAC-
11 was actually a SWD M-11, a weapon listed in § 921(a)(30).
Burnett also asserted that he should be sentenced under the pre-
1998 version of § 924(c) because, after the Supreme Court's decision
in Jones v. United States, 526 U.S. 227, 251-52 (1999), enhancements
for such factors were elements of the offense that were required to be
charged and proved beyond a reasonable doubt. The district court
found that Burnett had been charged under the amended version of
§ 924(c), and Burnett did not pursue the Jones argument further.
II.
We review a district court's legal determinations under the Sen-
tencing Guidelines de novo. United States v. Daughtry, 874 F.2d 213,
216-17 (4th Cir. 1989). However, findings by the district court for
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purposes of sentencing which required no legal interpretation of a
Guideline are findings of fact, and may not be disturbed absent clear
error. Id. Thus, we review the district court's enhancements to appel-
lants' sentences for clear error.
A.
We find first that the enhancements under § 3A1.2(b) and § 3C1.2
were properly made in Harrison's case. Though Harrison did not
carry a gun during the robbery, a defendant who undertakes a joint
criminal activity is accountable, for sentencing purposes, for the rea-
sonably foreseeable conduct of the others involved in furtherance of
the jointly undertaken criminal activity. USSG § 1B1.3. Furthermore,
Counts I and II of the indictment each charged appellants with aiding
and abetting under 18 U.S.C.A. § 2. The district court did not clearly
err in finding Harrison could reasonably foresee that one of his armed
co-defendants might fire a weapon so as to create a risk of serious
bodily injury. The district court also did not clearly err in finding
Harrison aided and abetted conduct that created a substantial risk of
death or serious bodily injury to the children in the getaway cars and
the public during the high-speed flight that followed the robbery.
USSG § 3C1.2.
B.
Second, we find that the court's decision to make adjustments
under both § 3A1.2(b) and § 3C1.2 was not error because each adjust-
ment was based on separate conduct. The commentary to § 3C1.2
directs that the enhancement should not be applied "where the offense
guideline in Chapter Two or another adjustment in Chapter Three,
results in an equivalent or greater increase in offense level solely on
the basis of the same conduct." USSG § 3C1.2, comment. (n.1). How-
ever, both adjustments may be applied when each is triggered by sep-
arate conduct. See, e.g., United States v. Alicea, 205 F.3d 480, 486
(1st Cir. 2000), cert. denied, 531 U.S. 909 (2000) (holding that high
speed chase and shots fired at pursuing officers separately endangered
police and public); see also United States v. Rodriguez-Matos, 188
F.3d 1300 (11th Cir. 1999), cert. denied, 529 U.S. 1044 (2000);
United States v. Miner, 108 F.3d 967(8th Cir. 1997); United States v.
Alexander, 48 F.3d 1477 (9th Cir. 1995); United States v. Swoape, 31
F.3d 482 (7th Cir. 1994). The district court determined, and we agree,
that Spann's assault with a semi-automatic weapon on the police offi-
cers after leaving the bank was a separate occurrence from the flight
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at high speed, and that the latter created a separate risk of death or
serious injury to both the children and the public, warranting an
adjustment under § 3C1.2.
III.
We find that the district court did not err in imposing a ten-year
mandatory minimum sentence for each appellant's § 924(c) convic-
tion. A sentence of not less than ten years is prescribed if the firearm
is discharged, see § 924(c)(1)(A)(iii), or if the firearm is a "semiauto-
matic assault weapon." See § 924(c)(1)(B)(i). The term "semiauto-
matic assault weapon" is defined in 18 U.S.C.A. § 921(a)(30) (West
2000). Burnett and Harrison argue that the subsections of § 924(c) set
out separate crimes, and that, because the indictment did not charge
that either of the weapons employed was a semiautomatic assault
weapon, and that factor was not proved beyond a reasonable doubt,
their enhanced sentences are unlawful. They rely on Apprendi v. New
Jersey, 530 U.S. 466 (2000); Castillo v. United States, 530 U.S. 120
(2000); and Jones.
Burnett preserved this issue for review by arguing that he could not
be sentenced under the current version of § 924(c) because, under
Jones, the sentencing enhancements were elements that were required
to be, and had not been, "pleaded and proved." With respect to Harri-
son, we review this issue for plain error because he did not raise it
below. United States v. Olano, 507 U.S. 725, 731-32 (1993) (holding
when issue not preserved for appeal, defendant must show error that
was plain, affected substantial rights, and seriously affects the fair-
ness, integrity, or public reputation of judicial proceedings).
This court has recently held that § 924(c)(1)(A) sets out sentencing
factors, not elements of separate offenses. United States v. Harris,
243 F.3d 806, 812 (4th Cir. 2001). See also United States v. Barton,
257 F.3d 433 (5th Cir. 2001); United States v. Pounds, 230 F.3d 1317
(11th Cir. 2000), cert. denied, 121 S.Ct. 1631 (2001) (finding that
§ 924(c)(1)(A)(iii) is a penalty provision with stiffer sentencing impli-
cations when a firearm is discharged); United States v. Carlson, 217
F.3d 986 (8th Cir. 2000), cert. denied, 531 U.S. 1095 (2001) (holding
that § 924(c)(1)(A)(i) is a penalty provision with sentencing implica-
tions when a firearm is brandished). Thus, because one of the firearms
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was discharged during the offense, the district court was free to
impose a ten-year sentence on both Burnett and Harrison under
§ 924(c)(1)(A)(iii).
Though it is unclear whether the district court sentenced Harrison
under § 924(c)(1)(A)(iii) or § 924(c)(1)(B)(i), it appears that for Bur-
nett, the district court found that the ten year consecutive sentence
applied because a semiautomatic assault weapon was used in the rob-
bery. 18 U.S.C.A. § 924 (c)(1)(B)(i). We recognize that under Harris,
sentencing would have been appropriate if the district court imposed
the ten years for violation of § 924(c)(1)(A)(iii). However, for the
purposes of this appeal, we assume both defendants were sentenced
under §924(c)(1)(B)(i), and therefore we confine our review to sen-
tencing under that subsection of the statute.
Appellants concede that under Harris, § 924(c)(1)(A) sets up sen-
tencing factors, but argue that subsections under § 924(c)(1)(B) create
elements of separate offenses that must be charged and proved
beyond a reasonable doubt.1111 Appellants rely heavily on the Supreme
Court's decision in Castillo v. United States, 530 U.S. 120 (2000).
There, the Court found that Congress intended the firearm type-
related words (such as machinegun) it used in § 924(c)(1) to refer to
elements of separate, aggravated crimes rather than sentencing factors
that authorize an enhanced penalty. Id. at 131. The Court concluded
that because the statute's language, structure, context and history
favored a "new crime" interpretation, the indictment must identify the
firearm type, and that element must be proved beyond a reasonable
doubt. Id. at 123-24. Appellants recognize that Castillo was based on
a previous version of § 924(c),2222 but incorrectly maintain that the anal-
ysis is the same under both versions.
_________________________________________________________________
1111 The indictment charged the appellants with knowingly using and car-
rying a "Mac-11 semi-automatic pistol." Appellants argue that the indict-
ment was insufficient because it did not state that the weapon was a
"semiautomatic assault weapon."
2222 (c)(1) Whoever, during and in relation to any crime of violence . . .,
uses or carries a firearm, shall, in addition to the to the punishment pro-
vided for such crime of violence . . ., be sentenced to imprisonment for
five years, and if the firearm is a short-barreled rifle [or a] short-barreled
shotgun to imprisonment for ten years, and if the firearm is a machine
gun . . . to imprisonment for thirty years.
(1988 ed., supp. V).
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The petitioners in Castillo were members of the Branch Davidian
religious sect who were involved in the confrontation with ATF
agents near Waco, Texas in 1993. Id. at 122. They were charged,
among other things, with violation of § 924(c)(1) (1988 ed.). Id. In
1998, the statute was amended, and the language and structure of the
statute changed. See 18 U.S.C.A. § 924, Historical and Statutory
Notes/Amendments. Thus, though Castillo is a recent opinion, its
holding, which is substantially based on the language and structure of
the statute before it was amended, is distinguishable.
First, and most important to our analysis, we note that the language
of § 924(c) has changed. The statute no longer provides for a determi-
nate statutory sentence. Instead, it requires a sentence of "not less
than 10 years" for the use of a semiautomatic assault weapon, and
"not less than 30 years" for a machinegun.3333 This is the language of
a mandatory minimum sentence, to be imposed where a defendant has
committed a base crime and certain aggravating circumstances are
_________________________________________________________________
3333 (c)(1)(A) Except to the extent that a greater minimum sentence is oth-
erwise provided by this subsection or by any other provision of law, any
person who, during and in relation to any crime of violence, . . . uses or
carries a firearm, or who, in furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment provided for such crime of
violence or drug trafficking crime--
(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.
(B) If the firearm possessed by a person convicted of a violation
of this subsection--
(i) is a short-barreled rifle, short-barreled shotgun, or semiauto-
matic assault weapon, the person shall be sentenced to a
term of imprisonment of not less than 10 years; or
(ii) is a machinegun or a destructive device, or is equipped
with a firearm silencer or firearm muffler, the person shall
be sentenced to a term of imprisonment of not less than 30
years.
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present. Thus, as a provision marking out a separate offense,
§ 924(c)(1)(B) would be incomplete; it sets forth no determinate sen-
tence or even any upper limit on sentencing. It makes sense only as
a sentencing factor that cabins a judge's discretion when imposing a
sentence for the base offense in § 924(c)(1), for which the maximum
penalty is life imprisonment.
In addition to the change in the statute's language, we note that the
structure of the statute also changed with the 1998 amendment. In
reaching its decision in Castillo that this earlier version of § 924(c)(1)
created separate criminal offenses based on the type of firearm used,
the Supreme Court emphasized the importance of the statute's struc-
ture. The Court noted that "Congress placed the element `uses or car-
ries a firearm' and the word `machine gun' in a single sentence, not
broken up with dashes or subsections." Castillo, 530 U.S. at 125. The
next three sentences that follow the above quoted section of the pre-
1998 § 924(c)(1) refer directly to sentencing: the first to recidivism,
the second to concurrent sentences, the third to parole. Id. The
Supreme Court found that these "structural features strongly suggest
that the basic job of the entire first sentence is the definition of crimes
and the role of the remaining three is a description of the factors (such
as recidivism) that ordinarily pertain only to sentencing." Id. As the
Supreme Court recognized in Castillo, the statute's 1998 restructur-
ing, which separated different parts of the first sentence (and others)
into subsections, suggests the "contrary interpretation," favoring sen-
tencing factors over elements. Id.
We find our reasoning to be in accord with the Seventh Circuit's
opinion in United States v. Sandoval, 241 F.3d 549 (7th Cir. 2001).
That court determined that the classification of a firearm as a "semi-
automatic assault weapon" under § 924(c)(1)(B)(i) is a sentencing
factor rather than an element of the offense, so the classification need
not be proved beyond a reasonable doubt. Id. at 550-51. The Seventh
Circuit found there was no Apprendi violation because convictions
under § 924(c) carry a statutory maximum sentence of life imprison-
ment, regardless of what subsection the defendant is sentenced under.
Id. at 551. The classification of the firearm--here as a semiautomatic
assault weapon--did not increase the maximum penalty; rather it
raised the minimum penalty from 5 to 10 years. Id.
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In reaching its decision, the Seventh Circuit scrutinized the statu-
tory structure of § 924(c), both before and after the 1998 Amendment.
It distinguished Castillo as "an old case (governed by old law)." Id.
at 551, n.1. The Court noted that the "structure of the present incarna-
tion of § 924(c)(1)--the one at issue here--is different." Id. at 551.
Now, the first clause of § 924(c)(1), standing alone, defines the
offense of using or carrying a firearm during a crime of violence,
while subsections (A) and (B) single out subsets of those persons
[who carry or use firearms during crimes of violence or drug traffick-
ing] for more severe punishment. The change in the language of the
statute, coupled with this structural change, favors the "sentencing
factor" interpretation. As the holding in Sandoval comports with our
decision in Harris and our interpretation of the statutory changes, we
find that the district court properly imposed the enhanced sentences.
IV.
Finally, Burnett claims that his attorney was ineffective in failing
to challenge the sufficiency of the indictment to support an enhanced
sentence based on possession of a semiautomatic assault weapon, in
failing to investigate the government's evidence concerning the fire-
arm, and in failing to raise the issue at sentencing. We find that the
record does not conclusively demonstrate that Burnett's attorney was
ineffective. Therefore, the claim of ineffective assistance should be
raised in a motion under 28 U.S.C.A. § 2255 (West Supp. 2000).
Accordingly, we affirm the sentences.
AFFIRMED
DIANA GRIBBON MOTZ, Circuit Judge, concurring in the judg-
ment:
I concur in the judgment and in the majority's emphasis on the crit-
ical revisions in the language of § 924(c)(1)(B), but I write separately
because I do not agree entirely with the remainder of the majority's
rationale or its characterization of Castillo v. United States, 530 U.S.
120 (2000).
In Castillo, the Supreme Court did closely examine the language
and structure of § 924(c), as the majority suggests, but it did not rest
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there. The Court also considered the statute's "context, history, and
such other factors as typically help courts determine a statute's objec-
tives." Id. at 124. In particular the Court noted that "statutory drafting
occurs against a backdrop . . . of traditional treatment of certain cate-
gories of important facts." Id. (quoting Jones v. United States, 526
U.S. 227, 234 (1999)).
It therefore mattered to the Court in Castillo that there is a "great"
difference between using a machine gun and using a pistol, "both in
degree and kind." Id. at 126. As the Court recounted, this difference
had been recognized by "substantive distinctions" in "numerous [fed-
eral] gun crimes" that punish the transport, sale, or manufacture of
machine guns and semiautomatic assault weapons while placing no
restrictions on pistols. Id. The Castillo Court also noted that state leg-
islatures, judges, and the Manual of Model Criminal Jury Instructions
have all commonly made this distinction, and that courts have not tra-
ditionally used firearm type as a sentencing factor "in respect to an
underlying `use or carry' crime." Id. These historic distinctions were
of special importance to the Court in understanding § 924(c), because
they "concern[ed] the nature of the element lying closest to the heart
of the crime at issue" -- using or carrying a firearm. As such, they
provided strong support for the Court's conclusion that Congress
meant to make use of a machine gun a separate crime in old § 924(c).
Id.
This part of Castillo's analysis applies equally to revised § 924(c),
which requires a significantly higher minimum penalty for use of a
machine gun than for use of other firearms -- thirty years instead of
five. Recently, we had occasion to examine another statute with simi-
lar features -- a "steeply higher penalt[y]" that depended on facts
"that the states and federal government traditionally have considered
elements of an offense rather than sentencing factors" -- and deter-
mined that the statute described a separate offense rather than a sen-
tencing factor. United States v. Campbell, 259 F.3d 293, 299 (4th Cir.
2001) (also noting that Castillo, 530 U.S. at 125, and Jones, 526 U.S.
at 233, teach that a statute's "look" is not dispositive "[w]here other
factors persuasively indicate that Congress' intent was to create sepa-
rate offense elements").
Nevertheless, the goal of our analysis is to ascertain Congress'
intent, and Congress can make firearm type a sentencing factor if it
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writes language that is clear enough to do so, even in light of the
strong contrary tradition. In the case of § 924(c)(1)(B) I think it did,
by failing to provide for determinate sentences. As the majority notes,
if this were "a provision marking out a separate offense" it would be
"incomplete." Ante at 8. Section 924(c)(1)(B) "sets forth no determi-
nate sentence or even any upper limit on sentencing." Id. The statute
therefore "makes sense only as a sentencing factor that cabins a
judge's discretion when imposing a sentence for the base offense in
§ 924(c)(1)." Id. If § 924(c)(1)(B) provided for a determinate sen-
tence, but was otherwise written and structured exactly as it is now,
I would hold that it created a separate offense.
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