United States of America v. Shaun Hurley

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHAUN HURLEY,
Defendant-Appellant.
No. 19-10064
D.C. No.
3:17-cr-08211-DLR-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted March 3, 2021**
Phoenix, Arizona
Before: HAWKINS and BUMATAY, Circuit Judges, and CARDONE,*** District
Judge.
Shaun Hurley appeals his two convictions and sentences for use of a firearm
in furtherance of a crime of violence under 18 U.S.C. § 924(c).
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
MAR 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We review the jury verdict form, the charging of multiple § 924(c) offenses,
and the imposition of conditions on supervised release for plain error, because
Hurley did not object below. See United States v. Espino, 892 F.3d 1048, 1051 (9th
Cir. 2018); United States v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007); United
States v. Wolf Child, 699 F.3d 1082, 1089 (9th Cir. 2012). We review de novo the
district court’s imposition of consecutive § 924(c) sentences because it involves a
question of law and was objected to below. See United States v. Hoyt, 879 F.2d 505,
511 (9th Cir. 1989), amended, 888 F.2d 1257 (9th Cir. 1989). We affirm.
1. The district court did not commit plain error by using a verdict form that
did not require the jurors to choose between “brandishing” or “discharging” the
firearm. The “use,” “brandishing,” and “discharge” of a firearm may all occur in the
same offense, and the highest mandatory minimum would apply under § 924(c).
See, e.g., Abbott v. United States, 562 U.S. 8, 13 (2010). Section 924(c)(1)(A)
conjunctively lists the “brandish[ing]” and “discharge[]” mandatory minimums,
confirming that Congress did not intend for the crimes to be mutually exclusive. See
18 U.S.C. § 924(c)(1)(A)(ii)-(iii). Here, the special verdict form required jurors to
record whether Hurley “brandished” and/or “discharged” a firearm. The jurors could
have picked either, neither, or both. The jury unanimously found that Hurley both
brandished and discharged a firearm. There is nothing inconsistent with a jury
finding that both occurred in the same offense.

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2. The district court did not plainly err by permitting the government to bring
two § 924(c) charges. While Hurley argues it was error to allow multiple convictions
under §924(c) for a single use of a firearm, we recently concluded that a defendant
who “fired four shots” at Deputy U.S. Marshals “in quick succession” was properly
charged with four separate § 924(c) counts. See United States v. Voris, 964 F.3d
864, 870, 873 (9th Cir. 2020) (“Here Voris used his gun four separate times when
he fired four shots toward the door—he pulled the trigger four times, in four slightly
different directions, resulting in four separate discharges[.]”). We held that each
discharge of the firearm constituted a separate “use” under § 924(c), even though the
shots were “quickly fired.” Id. at 873. Here, the firearm was first “discharged” near
the victim’s head as he was being assaulted, and second the firearm was
“brandish[ed]” at the same victim while Hurley stole the victim’s car. These two
“uses” of the firearm are separate offenses under § 924(c), and Hurley’s conviction
on two separate counts was not plain error.
3. The district court did not plainly err in imposing consecutive sentences for
Hurley’s two § 924(c) charges. Section 924(c)(1)(D)(ii) mandates that a § 924(c)
sentence run consecutively to any other § 924(c) sentence. See United States v.
Zepada, 792 F.3d 1103, 1116 (9th Cir. 2015) (en banc). As discussed above, Hurley
was convicted of two separate § 924(c) violations “tied to . . . different predicate

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offense[s].” See id. The district court therefore had no discretion to impose Hurley’s
two § 924(c) sentences concurrently.
4. The district court did not commit plain error by imposing Standard
Condition 12, Standard Condition 7, and Special Condition 4. First, Standard
Condition 12 is not unconstitutionally vague. This condition mirrors the language
used by the Sentencing Commission in U.S.S.G. § 5D1.3(c)(12), and imposing it
was not plain error. See United States v. Magdirila, 962 F.3d 1152, 1158–59 (9th
2020) (suggesting district court might cure constitutional deficiency by adopting
language similar to that used in U.S.S.G. § 5D1.3(c)(12)).
Second, Standard Condition 7 and Special Condition 4 are not substantively
unreasonable. Both conditions are “reasonably related to the goal of deterrence,
protection of the public, or rehabilitation of the offender.” United States v. Weber,
451 F.3d 552, 558 (9th Cir. 2006); see 18 U.S.C. § 3583(d). Standard Condition 7
requires Hurley to either “work full time” or “try to find full-time employment.”
Hurley does not show that he is incapable of seeking employment, nor does he show
that the condition is an unfair burden on a fundamental liberty interest. See United
States v. Vega, 545 F.3d 743, 748–49 (9th Cir. 2008). And, finally, Special
Condition 4 requires Hurley to participate in substance abuse treatment and
contribute to the cost of that treatment as determined by his probation officer. Hurley

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does not cite any case to support his objection to Special Condition 4, nor does he
offer any reason why it would be impossible for him to meet this condition.
AFFIRMED.

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