United States v. 2012-04-30 | 10-30278 | USA V. DEVAUGHN DORSEY | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 10-30278
Plaintiff-Appellee, D.C. No.
v. 2:08-cr-00245- 
DEVAUGHN DORSEY, also known as RSL-1
Buster, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
February 9, 2012—Seattle, Washington
Filed April 30, 2012
Before: Mary M. Schroeder and Ronald M. Gould,
Circuit Judges, and Ralph R. Beistline,
Chief District Judge.*
Opinion by Judge Gould
*The Honorable Ralph R. Beistline, Chief District Judge for the District
of Alaska, sitting by designation.
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COUNSEL
Sheryl Gordon McCloud (argued), Law Offices of Sheryl
Gordon McCloud, Seattle, Washington, for the defendant-
appellant.
Jill A. Otake (argued) and Helen J. Brunner, United States
Attorney’s Office, Seattle, Washington, for plaintiff-appellee.
OPINION
GOULD, Circuit Judge:
Devaughn Dorsey pleaded guilty to one count of conspir-
acy to traffic in motor vehicles or motor vehicle parts in viola-
tion of 18 U.S.C. § 371, two counts of operating a chop shop
in violation of 18 U.S.C. § 2322(a)(1) and (b), and seventeen
counts of trafficking in motor vehicles in violation of 18
U.S.C. § 2321(a). A jury then convicted Dorsey of two related
crimes: one count of witness tampering in violation of 18
U.S.C. § 1512(a)(1)(A), (1)(C), (2)(A), and (2)(C), and one
count of discharging a firearm during and in relation to a
crime of violence in violation of 18 U.S.C. § 924(c)(1)(A).
Dorsey now appeals from the judgment and sentence imposed
on all counts. We have jurisdiction under 28 U.S.C. § 1291.
We affirm.
I
A
Between July of 2007 and May of 2008, Dorsey led a con-
spiracy to traffic in stolen motor vehicles. To steal motor
vehicles, Dorsey and his co-conspirators did “key switches”
at auto dealerships. Members of the conspiracy would ask an
auto salesperson to start a vehicle. One person would distract
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the salesperson while another would switch the key in the
vehicle with a key from a similar vehicle. The members
would later return to the dealership and use the real key to
drive the vehicle off the lot. After stealing vehicles, Dorsey
and his co-conspirators removed their vehicle identification
numbers (“VIN”) and replaced them with other VINs gained
from wrecking yards. They then registered the stolen vehicles
with the Washington Department of Licensing using fraudu-
lent documents, and finally either sold for profit or abandoned
the vehicles.
As part of this conspiracy, Dorsey enlisted Martine Fullard
to help falsely register a stolen Buick LaCrosse. At Dorsey’s
direction, Fullard registered the LaCrosse in her name at the
Department of Motor Vehicles. Dorsey gave Fullard about
$200 and told her the car would be registered in her name no
longer than two weeks. Fullard saw the LaCrosse only once.
In January of 2008, Seattle police began an investigation of
the vehicle-trafficking conspiracy. Dorsey learned of the
investigation, and sometime after Fullard registered the
LaCrosse in her name, Dorsey called Fullard and told her that
the police would probably contact her. The police in fact
interviewed Fullard in March of 2008. On May 7, 2008, Ful-
lard was served with a grand jury subpoena in connection
with the vehicle-trafficking investigation. She was scheduled
to appear before the grand jury on May 15, 2008.
Dorsey knew that Fullard had been served with a grand jury
subpoena. A few days before Fullard’s scheduled grand jury
appearance, Dorsey told William Fomby that Fullard was
going to testify before the grand jury and said, “Man, I got to
do something, man. I’m about to go back to Cali.” Dorsey had
previously been convicted of conspiracy to traffic in stolen
motor vehicles and operating a chop shop and had served his
sentence at a federal prison in California. Dorsey also told
Diamond Gradney that Fullard and Tia Lovelace had received
subpoenas and accused Gradney of being subpoenaed and not
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telling him. And, presumably referring to Fullard, Dorsey said
to Shawn Turner, “That bitch better not testify against me.”
On the night of May 13, 2008, two days before Fullard’s
scheduled grand jury appearance, Fullard was cooking in the
kitchen of her West Seattle apartment. At about 10:29 pm,
seven shots were fired into the apartment through a window
over the kitchen sink. Fullard’s boyfriend, mother, and two
children, then ages eight and ten, were also in the apartment.
Three bullets struck Fullard and one struck her older son.
Then two more shots were fired through a different window
near the front door; they did not strike anyone. The gunshot
wounds of Fullard and her son were not fatal.
Minutes after the shooting, between 10:33 pm and 10:42
pm, Dorsey made eight calls to police detectives from his cell
phone. Detective Thomas Mooney received the first of Dor-
sey’s calls to him that night just after he got the dispatch
about the shooting at Fullard’s apartment, at 10:29 pm. Moo-
ney answered, and Dorsey told him that he was “at 23rd and
Union” in Seattle and had found a man that Mooney was
looking for. Mooney said that he had to go investigate a
shooting and hung up. Then Dorsey called back and repeated
that he was at 23rd and Union.
But here is the problem with Dorsey’s alibi: Dorsey was
not at 23rd and Union in the minutes after 10:29 pm on May
13, 2008. There is a dominant cellular tower at 23rd and
Union, and Dorsey’s cell phone call was not transmitted
through that tower that night. Rather, between 9:16 pm and
the time of the shooting, Dorsey’s cell phone hit off of a cel-
lular tower almost directly behind Fullard’s apartment eight
times and hit off of no other cellular tower during that period.
Dorsey made no calls from his cell phone between 10:07 pm
and 10:29 pm. At 10:33 pm, four or five minutes after the
shooting and the time at which Dorsey called Mooney, Dor-
sey’s cell phone hit off of a cellular tower near the east end
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of the West Seattle Bridge, far from 23rd and Union and only
a few minutes’ driving distance from Fullard’s apartment.
B
The government filed a fourteen-count indictment against
Dorsey and other participants in the vehicle-trafficking con-
spiracy. The government then filed a twenty-count supersed-
ing indictment and a twenty-two-count second superseding
indictment against Dorsey. The second superseding indict-
ment charged Dorsey with one count of conspiracy to traffic
in motor vehicles or motor vehicle parts in violation of 18
U.S.C. § 371 (Count 1); two counts of operating a chop shop
in violation of 18 U.S.C. § 2322(a)(1) and (b) (Counts 2 and
3); seventeen counts of trafficking in motor vehicles in viola-
tion of 18 U.S.C. § 2321(a) (Counts 4 through 20); one count
of witness tampering in violation of 18 U.S.C.
§ 1512(a)(1)(A), (1)(C), (2)(A) and (2)(C) (Count 21); and
one count of discharging a firearm during and in relation to
a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)
(Count 22). Counts 21 and 22 were based on the govern-
ment’s allegation that Dorsey shot into Fullard’s apartment to
prevent her grand jury testimony.
Dorsey pleaded guilty to Counts 1 through 20, accepting
his criminal liability for the charges of conspiracy, vehicle-
trafficking, and operating a chop shop. But while agreeing to
these serious offenses, Dorsey maintained his innocence on
the counts relating to the shooting of planned grand jury wit-
ness Fullard. The case proceeded to trial on Counts 21 and 22.
Before trial, the government moved in limine to admit testi-
mony from William Fomby, a co-conspirator who had
pleaded guilty, that before the shooting he had seen Dorsey
with a Glock firearm. After the pretrial motions hearing but
before opening statements at trial, Mouy Harper, an ex-
girlfriend of Dorsey’s, told the prosecution that she, too, had
seen Dorsey with a gun before the shooting. The district court
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ruled that Fomby’s testimony and Harper’s testimony were
admissible. The district court also ruled that the government’s
exhibit of a three-gun montage, from which Harper had iden-
tified a Glock as the gun that she had seen Dorsey possessing,
was admissible.
Dorsey at trial stressed the lack of direct evidence against
him. There were no eyewitnesses, no gun, no fingerprints, and
no DNA linking him to the shooting. Dorsey contended that
of several possible theories for the shooting, the police pur-
sued only the theory that he was the shooter. But the govern-
ment presented circumstantial evidence showing that Dorsey
had definite knowledge of Fullard’s receipt of a grand jury
subpoena and a strong motive to prevent her grand jury testi-
mony. The government also presented Dorsey’s cell phone
records and cellular tower data to show Dorsey’s attempts to
call the police to establish that he was someplace he was not
at the time of the shooting. Technology was fatal to Dorsey’s
alibi because he used a cell phone that showed his proximity
to the scene of the shooting, not to where he said he was when
he called. That Dorsey tried to create a fake alibi was not
merely ineffective, but also stands high in the hierarchy of
evidence tending to show guilt.
In addition, Fomby testified that before the shooting he saw
Dorsey retrieve a black, bulky gun that he thought was a
Glock from the trunk of Harper’s car. Harper testified that she
recalled Dorsey taking something from the trunk of her car,
that she once saw Dorsey with a charcoal gray gun, and that
she had identified the first gun in the three-gun montage
shown to her by the police—a Glock .40 caliber with a black
polymer frame—as a gun that looked like the gun she saw. A
firearm and toolmark examiner testified that the combined
characteristics of the cartridge cases and bullets recovered
from Fullard’s apartment were consistent with a Glock or
similar type of firearm.
During cross-examination Detective Paul Suguro remarked
that Dorsey “did it.” The district court at once told the jury to
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disregard the comment and admonished Suguro in front of the
jury. Dorsey moved for a mistrial. The district court denied
the motion because it concluded that Dorsey was not preju-
diced by Suguro’s comment.
After an eight-day trial, the jury found Dorsey guilty on
both counts. Dorsey moved for a new trial based on the
admission of the testimony of Fomby and Harper that Dorsey
possessed a gun before the shooting, and on Detective
Suguro’s comment that Dorsey “did it.”1 The district court
denied the motion. The district court sentenced Dorsey to
forty-eight years in prison: five years on Count 1, thirteen
years each on Counts 2 and 3, ten years each on Counts 4
through 20, and thirty years on Count 21, all to run concur-
rent; and eighteen years on Count 22, to run consecutive to
Counts 1 through 21. The district court entered judgment, and
Dorsey timely appealed.
II
Dorsey first challenges the district court’s admission of the
testimony of William Fomby and Mouy Harper on Dorsey’s
possession of a Glock-like gun in the months before the
shooting. We review a district court’s admission of evidence
for abuse of discretion. United States v. Rizk, 660 F.3d 1125,
1130 (9th Cir. 2011). We review de novo whether evidence
falls within the scope of Federal Rule of Evidence 404(b). See
id. at 1131.
[1] Evidence is relevant if: “(a) it has any tendency to
make a fact more or less probable than it would be without the
evidence; and (b) the fact is of consequence in determining
the action.” Fed. R. Evid. 401. Relevant evidence is generally
admissible, though it may be excluded if its probative value
1Dorsey also sought a new trial based on the government’s alleged fail-
ure to correct false or perjured testimony, but he does not raise that claim
on appeal.
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is substantially outweighed by a danger of unfair prejudice.
See Fed. R. Evid. 402, 403. Federal Rule of Evidence 404(b)
also limits the general admissibility of relevant evidence, as
it makes evidence of other crimes, wrongs, or acts inadmissi-
ble to show propensity. United States v. Curtin, 489 F.3d 935,
943 (9th Cir. 2007) (en banc). Such evidence may be admissi-
ble for other purposes, however, “such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b).
[2] We have held that evidence should not be considered
“other crimes” or “other act” evidence within the meaning of
Rule 404(b) if “the evidence concerning the ‘other’ act and
the evidence concerning the crime charged are inextricably
intertwined.” United States v. Soliman, 813 F.2d 277, 279 (9th
Cir. 1987) (internal quotation marks, citation, and alteration
omitted); accord United States v. Williams, 989 F.2d 1061,
1070 (9th Cir. 1993). Two general categories of other act evi-
dence may be “inextricably intertwined” with a charged crime
and thus exempted from the requirements of Rule 404(b).
United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012 (9th
Cir. 1995). First, other act evidence may “constitute[ ] a part
of the transaction that serves as the basis for the criminal
charge.” Id. Second, admission of other act evidence may be
“necessary . . . to permit the prosecutor to offer a coherent and
comprehensible story regarding the commission of the crime.”
Id. at 1012-13.
Here, the government sought to introduce the testimony of
Fomby and Harper about seeing Dorsey with a gun before the
Fullard shooting. The government argued that this testimony
was “inextricably intertwined” with the charged crimes of
witness tampering and discharging a firearm during and in
relation to a crime of violence. In the alternative, the govern-
ment argued that the testimony was admissible under Rule
404(b) to prove Dorsey’s identity as the shooter.
[3] We agree with the district court that the testimony of
Fomby and Harper about seeing Dorsey with a Glock or
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Glock-like gun was not “other act” evidence subject to Rule
404(b). Rather, given the expert testimony that a Glock or
similar firearm was used to shoot into Fullard’s apartment,
Fomby’s and Harper’s testimony was evidence that Dorsey
had a gun of the same or a similar type as the gun used in the
shooting. The testimony was relevant because it tended to
prove that Dorsey had the means to commit the charged
crimes and that he was in fact the shooter. See Fed. R. Evid.
401. The gun testimony added to the circumstantial case
against Dorsey, built primarily on his motive and the cell
phone evidence, and thus formed part of the prosecution’s
“coherent and comprehensible story regarding the commis-
sion of the crime.” Vizcarra-Martinez, 66 F.3d at 1012-13.
Because the testimony bore directly on the commission of the
charged crimes, it was inextricably intertwined with those
crimes and outside the scope of Rule 404(b). See id. The dis-
trict court properly admitted the testimony of Fomby and Har-
per as relevant evidence under Rules 401 and 402.
[4] We reject Dorsey’s argument that the three-gun photo
montage shown to Mouy Harper was impermissibly sugges-
tive. The district court held a hearing on the montage, and
there a police officer testified about the interview of Harper.
Harper told the police that she had seen Dorsey with a gun
and described the gun as big, bulky, and “like a cop gun,” but
indicated that she did not know if the gun she saw was a semi-
automatic. The officer, knowing that most police agencies use
Glocks and that some older police officers carry revolvers,
then retrieved two Glocks commonly carried by police offi-
cers and a revolver to show to Harper. Harper immediately
pointed to one of the Glocks and said that it was the gun she
saw. Viewing the totality of the circumstances, we conclude
that this identification procedure was not “so impermissibly
suggestive as to give rise to a substantial likelihood of mis-
taken identification” and did not violate due process. See
United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985).
The district court properly admitted the exhibit of the mon-
tage into evidence. The weight to be given Harper’s identifi-
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cation, considering the limited montage, was for the jury to
decide. See id. at 494. This challenge to the montage went
more to weight than to admissibility of the testimony of Har-
per about the gun.
[5] We also agree with the district court that the probative
value of the gun testimony was not outweighed by a danger
of unfair prejudice. See Fed. R. Evid. 403. As stated above,
the testimony tied Dorsey to a gun that was the same as or
similar to the gun likely used in the shooting. That Fomby and
Harper saw a Glock-like gun on Dorsey three to four months
before the shooting did not render their testimony excludable
under Rule 403, even though testimony about a more proxi-
mate gun sighting might have been stronger proof of Dorsey’s
guilt. Evidence that Dorsey had a Glock-like gun in January
or February of 2008 made it more likely that he still had that
gun on the night of the shooting in May. Moreover, the evi-
dence was not unfairly prejudicial. Testimony about mere gun
possession was not likely to inflame the jury, and given the
dissimilarity between mere possession and the charged
crimes, both based on Dorsey’s actual discharge of a gun, the
risk of improper propensity reasoning was low.
[6] We hold that the district court did not abuse its discre-
tion in admitting the Fomby and Harper testimony about see-
ing Dorsey with a Glock or similar gun before the shooting.
III
Dorsey next contends that the government improperly
vouched for Fomby’s credibility when it elicited testimony on
the truthfulness provisions of Fomby’s plea agreement.
Because Dorsey did not object to this testimony at trial, we
review for plain error. United States v. Combs, 379 F.3d 564,
568 (9th Cir. 2004). Under plain-error review, reversal is
proper only if there is (1) an error that is (2) clear or obvious,
(3) affects substantial rights, and (4) “seriously affects the
fairness, integrity or public reputation of judicial proceed-
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ings.” United States v. Marcus, 130 S. Ct. 2159, 2164 (2010)
(internal quotation marks, citation, and alteration omitted). In
determining whether vouching is plain error, we “balance the
seriousness of the vouching against the strength of the cura-
tive instruction and closeness of the case.” United States v.
Necoechea, 986 F.2d 1273, 1278 (9th Cir. 1993).
[7] The prosecution may not vouch for the credibility of its
witnesses by “placing the prestige of the government behind
a witness through personal assurances of the witness’s veraci-
ty” or “suggesting that information not presented to the jury
supports the witness’s testimony.” Id. at 1276. Eliciting testi-
mony on direct examination that a witness entered into a plea
agreement that requires truthful testimony may constitute
vouching. United States v. Wallace, 848 F.2d 1464, 1474 (9th
Cir. 1988). That a plea agreement requires a witness to tell the
truth might be argued to suggest that a witness, “who might
otherwise seem unreliable, has been compelled by the prose-
cutor’s threats and the government’s promises to reveal the
bare truth” and that “the prosecutor can verify the witness’s
testimony and thereby enforce the truthfulness condition of its
plea agreement.” Id. Such an inference might be drawn by a
juror, but referring to a plea agreement’s mandate to be truth-
ful does not constitute vouching for a witness if such refer-
ences are “made in response to an attack on the witness’s
credibility because of his plea bargain,” including an attack in
defense counsel’s opening statement. United States v. Mon-
roe, 943 F.3d 1007, 1013-14 (9th Cir. 1991); see also Necoe-
chea, 986 F.2d at 1278-79.
Here, the prosecutor asked Fomby about the truthfulness
requirements of his plea agreement only after defense counsel
attacked Fomby’s credibility. In his opening statement,
defense counsel said that the first time the police asked
Fomby about Dorsey, Fomby said that he did not even know
Dorsey, but that later, the police told Fomby that they could
give him favorable treatment, depending on what he had to
say about Dorsey. Defense counsel continued, “Fomby, you’ll
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hear, is a convicted perjurer. He’s getting a deal from the gov-
ernment. And he’s been consistently inconsistent every time
he’s been spoken to.” On direct examination, the following
exchange between the prosecutor and Fomby took place:
Q: Now, you pled guilty to conspiracy to traffic in
motor vehicles, did you not?
A: Correct.
Q: And you entered into a cooperating plea agree-
ment with the United States of America, did you
not?
A: Yes.
Q: What is your understanding of the cooperating
agreement?
A: To tell the complete truth.
Q: Does it require you to cooperate with the United
States?
A: Yes.
Q: And what must your cooperation be?
A: To tell the complete truth.
Q: Are you required to testify as part of your coop-
eration?
A: Correct.
Q: And what must your testimony be?
A: The complete truth.
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Q: Isn’t it true, sir, that the United States will not
tolerate any deception from you?
A: Correct.
Q: What do you hope to gain from the United
States and from this court for your complete and
truthful testimony?
A: Some leniency on my sentence.
[8] The prosecutor asked these questions after defense
counsel attacked Fomby’s credibility in part because of
Fomby’s plea bargain. As a result, the references to the truth-
fulness provisions of Fomby’s plea agreement did not consti-
tute vouching. See Monroe, 943 F.2d at 1014. Defense
counsel implied in his opening statement that Fomby was a
liar and that he was biased because he got “a deal from the
government.” The prosecutor permissibly responded to this
attack by eliciting testimony that Fomby’s plea agreement
required him to tell the truth. When the defense opens a door,
it should not be surprised to see the prosecutor enter.
Dorsey particularly challenges the prosecutor’s question,
“Isn’t it true, sir, that the United States will not tolerate any
deception from you?” Dorsey argues that Fomby’s affirmative
answer to this question amounted to testimony that the gov-
ernment was “monitoring” Fomby’s testimony for truthful-
ness. Among the factors that we consider in reviewing
vouching claims are “how much the vouching implies that the
prosecutor has extra-record knowledge of or the capacity to
monitor the witness’s truthfulness” and “any inference that
the court is monitoring the witness’s veracity.” Necoechea,
986 F.2d at 1278. A statement that the government would
“not tolerate any deception” might be argued to imply that the
government would know if Fomby was lying and thus had
“the capacity to monitor [his] truthfulness.” But in the total
circumstances, the prosecutor’s question was not improper
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vouching. Fomby’s credibility had been attacked, and saying
that deception will not be tolerated is little different from say-
ing that the witness must testify truthfully. The prosecutor did
not refer to extra-record facts or say that it could verify that
Fomby was telling the truth. Cf. United States v. Rudberg, 122
F.3d 1199, 1204-06 (9th Cir. 1997) (reversing for plain error
because prosecutor’s actions suggested that FBI verified accu-
racy of witnesses’ testimony through investigations and that
“testimony of several such witnesses ha[d] already been found
truthful by the court”); United States v. Shaw, 829 F.2d 714,
717 (9th Cir. 1987) (discussing significance of “extra-record
reference to verification”).
[9] We hold that the prosecutor did not improperly vouch
for Fomby’s credibility.
IV
[10] Dorsey contends that Detective Suguro’s comment
that Dorsey “did it” was improper vouching and requires a
new trial. Because Dorsey objected to this comment at trial,
we review for harmless error. United States v. Hermanek, 289
F.3d 1076, 1098 (9th Cir. 2002). We will reverse only if,
viewing Suguro’s comment “in the context of the entire trial,”
“it is more probable than not that [it] materially affected the
verdict.” United States v. Sarkisian, 197 F.3d 966, 988 (9th
Cir. 1999) (internal quotation marks and citations omitted).
We review a district court’s denial of a motion for a mistrial
or new trial for abuse of discretion. United States v. Washing-
ton, 462 F.3d 1124, 1135 (9th Cir. 2006).
In cross-examining Detective Suguro, defense counsel tried
to show that Dorsey could have learned about the Fullard
shooting from the media or other sources. He asked, “So it
would not be surprising or remarkable to say that he probably
knew about it, would it?” Suguro answered, “Well, of course.
He did it.” Defense counsel then asked, “He did what?”
Before Suguro could answer, the district court interjected,
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“The jury should disregard the last remark. Detective, just
limit your answers to the questions that counsel asks you.”
Dorsey moved for a mistrial based on Detective Suguro’s
comment. The district court denied the motion, reasoning that
Dorsey was not prejudiced by the comment. The district court
concluded not only that Suguro’s testimony “did not hurt the
defense case,” but that in fact his testimony “severely hurt the
government’s case.” The district court noted that it was not “a
sudden revelation to the jury” that the police thought Dorsey
was guilty and that Suguro’s improper remark “fit right into”
defense counsel’s opening statement that the police had “tun-
nel vision” and investigated only Dorsey, to the exclusion of
other potential suspects. The district court also noted that it
had immediately instructed the jury to disregard Suguro’s
comment and had reprimanded Suguro “in a stern voice, with
a disapproving look,” for the jury to see. The district court
gave defense counsel the option of an additional curative
instruction, but defense counsel declined such an instruction.
After the verdict, the district court denied Dorsey’s motion for
a new trial, again stressing the strength of its immediate cura-
tive instruction and stating, “I was convinced then and I am
convinced now that it did not permeate the trial to the extent
that it created an unfair or inappropriate result.”
[11] Detective Suguro’s conduct in stating that Dorsey
“did it” was incorrect. As an experienced police officer,
Suguro should have known not to comment on Dorsey’s guilt
on the witness stand. But in the context of the entire trial, we
conclude that the improper comment was more probably than
not harmless. See Sarkisian, 197 F.3d at 988.
[12] When Suguro said that Dorsey “did it,” the district
court took prompt action to prevent any prejudice. Before
defense counsel objected or Suguro could answer the next
question, the district court told the jury to disregard Suguro’s
statement and told Suguro to limit his answers to the ques-
tions asked. In light of our “strong presumption that jurors
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follow instructions,” Miller v. City of L.A., 661 F.3d 1024,
1030 (9th Cir. 2011), the district court’s swift rebuke in front
of the jury prevented Suguro’s improper comment from mate-
rially affecting the verdict, see Washington, 462 F.3d at 1136
(“A judge’s prompt corrective action in response to improper
comments usually is sufficient to cure any problems arising
from such improper comments.”); United States v. Younger,
398 F.3d 1179, 1192 (9th Cir. 2005).
[13] Because Suguro’s remark, though improper, did not
prejudice Dorsey, we hold that the district court did not abuse
its discretion in denying Dorsey’s motions for a mistrial and
new trial.
V
Dorsey’s final challenge is to his eighteen-year sentence on
Count 22. In sentencing Dorsey on this count, the district
court held that the statutory sentencing range for Dorsey’s 18
U.S.C. § 924(c)(1)(A) conviction was ten years to life. Dorsey
contends that the district court erred because the statutory
maximum sentence under § 924(c)(1)(A) is the mandatory
minimum sentence of ten years. We review this issue of statu-
tory interpretation de novo. See United States v. Devorkin,
159 F.3d 465, 466 (9th Cir. 1998).
[14] The mandatory minimum sentence for discharging a
firearm during and in relation to a crime of violence is ten
years. 18 U.S.C. § 924(c)(1)(A)(iii) (providing for “term of
imprisonment of not less than 10 years”). Section
924(c)(1)(A) does not specify a maximum sentence.
[15] We first reject Dorsey’s contention that the statutory
maximum is the mandatory minimum. In setting the sentence
for a § 924(c)(1)(A)(iii) conviction at “not less than” ten
years, Congress created a floor. A plain reading of the statute
leads us to conclude that there must be permissible sentences
above that floor. The statute’s legislative history supports our
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conclusion. Before 1998, § 924(c) set mandatory sentences; in
1998, Congress amended § 924(c) to change the once-
mandatory sentences to mandatory minimum sentences. Pub.
L. No. 105-386, § 1, 112 Stat. 3469 (1998). Compare 18
U.S.C. § 924(c)(1) (1994) (stating that a person shall “be sen-
tenced to imprisonment for five years” for using or carrying
a firearm during and in relation to a crime of violence), with
18 U.S.C. § 924(c)(1)(A)(i) (2006) (stating that such a person
shall “be sentenced to a term of imprisonment of not less than
5 years”). The 1998 amendment signals Congress’s intent that
the ten-year sentence in § 924(c)(1)(A)(iii) be “the minimum
or the floor, not the floor and ceiling as the prior version of
the statute provided,” and that it “left open the ceiling.” See
United States v. Sias, 227 F.3d 244, 246 (5th Cir. 2000). For
these reasons, the district court correctly concluded that the
statutory maximum sentence under § 924(c)(1)(A) is greater
than the mandatory minimum.
[16] We next address whether the statutory maximum is
life or something less than life but more than ten years. The
Supreme Court’s decision in Harris v. United States, 536 U.S.
545 (2002), suggests a maximum of life imprisonment. The
Harris plurality held that brandishing a firearm is a sentenc-
ing factor rather than an element of the offense in
§ 924(c)(1)(A), reasoning that because the statute’s “subsec-
tions alter only the minimum, the judge may impose a sen-
tence well in excess of seven years, whether or not the
defendant brandished the firearm.”2 Id. at 554, 556 (emphasis
added). In dissent, Justice Thomas explicitly referred to “the
statutory maximum of life imprisonment for any violation of
§ 924(c)(1)(A).” Id. at 574 (Thomas, J., dissenting); see also
United States v. O’Brien, 130 S. Ct. 2169, 2182 (2010) (Ste-
vens, J., concurring) (noting that § 924(c)(1) “contains an
implied statutory maximum of life”); id. at 2184 (Thomas, J.,
concurring in the judgment) (stating that penalty range under
2Subsection ii provides a seven-year minimum for brandishing. 18
U.S.C. § 924(c)(1)(A)(ii).
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§ 924(c)(1)(A)(i) is “five years to life imprisonment”). Rely-
ing on Harris, we have stated in dicta that the maximum sen-
tence under § 924(c)(1)(A) is life imprisonment. See
Washington, 462 F.3d at 1139 & n.8; United States v. Dare,
425 F.3d 634, 640 (9th Cir. 2005). Each of our sister circuits
to address this issue has similarly concluded—some of them
holding, not merely stating in dicta—that the statutory maxi-
mum is life. See United States v. Shabazz, 564 F.3d 280, 289
(3d Cir. 2009) (holding statutory maximum is life imprison-
ment and affirming sentence of 360 months); United States v.
Johnson, 507 F.3d 793, 798 (2d Cir. 2007) (affirming sen-
tence of life imprisonment); United States v. Gamboa, 439
F.3d 796, 811 (8th Cir. 2006) (stating maximum is life in
dicta); United States v. Avery, 295 F.3d 1158, 1170 (10th Cir.
2002) (same); United States v. Cristobal, 293 F.3d 134, 147
(4th Cir. 2002) (same); United States v. Sandoval, 241 F.3d
549, 551 (7th Cir. 2001) (same); United States v. Pounds, 230
F.3d 1317, 1319 (11th Cir. 2000) (same); Sias, 227 F.3d at
246 (holding maximum is life and affirming ten-year sentence
for § 924(c)(1)(A)(ii) conviction).
Dorsey contends that § 924(c)(1)(A) cannot be interpreted
to have a maximum of life because of the rule of lenity. The
rule of lenity has been a guide to interpreting criminal statutes
since early in our nation’s history. Chief Justice Marshall
explained in United States v. Wiltberger, 18 U.S. (5 Wheat.)
76, 95 (1820), that “penal laws are to be construed strictly.”
Or, as Justice Frankfurter stated in Bell v. United States, 349
U.S. 81, 83 (1955), “[A]mbiguity should be resolved in favor
of lenity,” and thus “[i]t may fairly be said to be a presupposi-
tion of our law to resolve doubts in the enforcement of a penal
code against the imposition of a harsher punishment.”
The rule of lenity, however, is not an absolute rule but
rather a maxim to guide statutory interpretation. See Wiltber-
ger, 18 U.S. (5 Wheat.) at 95. Our application of principles of
statutory interpretation, giving due respect to the rule of len-
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ity, leads us to follow the precedential path set by prior courts.
Many reasons support this conclusion.
First, we cannot construe § 924(c)(1)(A) in a way lenient to
Dorsey that is at odds with the clear language used by Con-
gress. As explained above, whatever else may be meant by the
term “not less than” within § 924(c)(1)(A), it cannot sensibly
be interpreted to mean “not more than.” Second, our law has
endorsed the idea that we will not lightly create a circuit split.
Sternberg v. Johnston, 595 F.3d 937, 948 (9th Cir. 2010).
Accordingly, we start off inclined to follow the consistent
decisions of the Second, Third, and Fifth Circuits, which have
squarely addressed this issue. See Shabazz, 564 F.3d at 289;
Johnson, 507 F.3d at 798; Sias, 227 F.3d at 246. Third, we
think it appropriate to give some weight to the dicta of our
own and other circuits suggesting that § 924(c)(1)(A) has life
imprisonment as a maximum. See Washington, 462 F.3d at
1139 & n.8; Gamboa, 439 F.3d at 811; Avery, 295 F.3d at
1170; Dare, 425 F.3d at 640; Cristobal, 293 F.3d at 147; San-
doval, 241 F.3d at 551; Pounds, 230 F.3d at 1319. Fourth,
although the Supreme Court has not expressly voiced an opin-
ion on the statutory maximum for violating § 924(c)(1)(A),
dicta from more than one Justice endorses life imprisonment
as the maximum term. See O’Brien, 130 S. Ct. at 2182 (Ste-
vens, J., concurring); Harris, 536 U.S. at 574 (Thomas, J.,
dissenting). Fifth, Congress legislates with existing judicial
opinions in mind. See Egebjerg v. Anderson (In re Egebjerg),
574 F.3d 1045, 1050 (9th Cir. 2009). Since the 1998 amend-
ment to § 924(c), the consensus among the Courts of Appeals
has been that the maximum is life. This is the background
against which Congress has enacted new laws and amended
old ones, and it has not seen fit to correct or disagree with the
Courts of Appeals.
Finally, our holding in United States v. Bland, 961 F.2d
123 (9th Cir. 1992), strongly supports our conclusion today.
There we rejected a rule of lenity challenge to a life sentence
imposed pursuant to 18 U.S.C. § 924(e), which provides for
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a term of imprisonment of “not less than fifteen years,” but
like § 924(c)(1)(A), does not state a maximum. Id. at 128. We
held that “a life sentence is authorized by § 924(e),” reasoning
that the rule of lenity did not apply to preclude a life sentence
because § 924(e) was “not ambiguous in terms” and was
“clearly intended to incapacitate and to punish severely recidi-
vist violent and armed felons.” Id. (internal quotation marks
omitted).3
[17] In other words, where Congress has been silent on the
maximum term of imprisonment for a serious crime, but has
made clear its intent that offenders be punished severely, we
may imply that the maximum available sentence is life. See
id.; see also Washington, 462 F.3d at 1139 n.8 (stating in
dicta that “[w]hen a statute fails to state a maximum sentence,
the maximum available sentence under the statute is life”);
United States v. Brame, 997 F.2d 1426, 1428 (11th Cir. 1993)
(collecting cases from Second, Third, Fourth, Fifth, Seventh,
and Tenth Circuits concluding § 924(e) has maximum of life).
In amending § 924(c), Congress not only changed once-
mandatory sentences to mandatory minimum sentences, but
also added the requirement that sentences be imposed consec-
utively, and expressed a clear intent to punish severely crimi-
nals who use guns while committing violent crimes. See 18
U.S.C. § 924(c)(1)(A), (D)(ii); § 1, 112 Stat. at 3469; 961
F.2d at 128; see also, e.g., Criminal Use of Guns: Hearing on
S. 191 Before the S. Comm. on the Judiciary, 105th Cong. 4
(1997) (statement of Sen. Jesse Helms) (calling for amend-
ment of § 924(c) to fight violent crime “with the most severe
punishment possible for those who terrorize law-abiding citi-
zens”); 144 Cong. Rec. H10,329 (Oct. 9, 1998) (statement of
Rep. Betty McCollum) (“Criminals who carry guns while
committing serious crimes are making a clear and unequivo-
3In light of our interpretation of § 924(e) in Bland, we reject Dorsey’s
contention that because some subsections of § 924 expressly authorize life
sentences, we cannot interpret § 924(c) to impliedly authorize a life sen-
tence.
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cal statement to the world, I will hurt you or kill you if you
get in my way. Such persons should be punished severely, and
that is what this legislation will do.”). Because Congress has
made clear that § 924(c)(1)(A) offenses are to be punished
severely, the rule of lenity is not properly applied here.
[18] We hold that the maximum sentence for a
§ 924(c)(1)(A) conviction is life imprisonment. Because the
sentencing range on Dorsey’s § 924(c)(1)(A) conviction was
ten years to life, the district permissibly sentenced him to an
eighteen-year term of imprisonment on Count 22.
AFFIRMED.
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