United States v. Phipps

REVISED JANUARY 22, 2003
In the United States Court of Appeals
For the Fifth Circuit
_______________
m 02-10102
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL SHANE PHIPPS
AND
DEAN RAYBURN GILLEY,
Defendants-Appellants.
_________________________
Appeals from the United States District Court
for the Northern District of Texas
_________________________
January 15, 2003

-- 1 of 16 --

2
Before JONES, SMITH, and SILER,* Circuit
Judges.
JERRY E. SMITH, Circuit Judge:
Michael Phipps and Dean Gilley appeal sev-
eral aspects of their kidnaping, carjacking, and
firearms convictions and sentences. Because
18 U.S.C. § 924(c)(1) does not unambiguously
authorize their multiple convictions for a single
use of a single firearm based on multiple predi-
cate offenses, we vacate the sentences and re-
mand for resentencing on all counts after one
of the § 924(c)(1) counts is dismissed.
I.
On December 13-14, 2000, Paula Vastano-
Pasquariello departed work and drove to her
home outside Dallas; defendants and their ac-
complice, Julian Medina, followed her in Me-
dina’s car. As Pasquariello pulled into her car-
port, defendants approached her, Phipps put a
gun to her head, Gilley restrained her in the
back seat of her car, and they drove away with
Phipps at the wheel. They stopped briefly to
give the gun to Medina, then headed for the
highway. Once they were on the highway,
Gilley forced Pasquariello to perform sex acts
with him, and he raped her. During and after
the rape, Gilley continuously threatened Pas-
quariello with a knife as Phipps drove through
the night.
Defendants switched positions near the
Texas-New Mexico border. With Gilley driv-
ing, Phipps commanded Pasquariello to per-
form sex acts with him again. Gilley warned
Phipps to wait until they arrived in Albuquer-
que, lest passing drivers see them. Upon ar-
riving in Albuquerque, defendants forced Pas-
quariello to buy clothes for them and checked
into a motel. Phipps again announced his de-
sire to rape Pasquariello, but Gilley, who had
become nervous, again intervened.
Defendants drove to a nearby alley. Pas-
quariello apparently believed that defendants
planned to kill her, so she fled, screaming. De-
fendants did not give chase.
The FBI quickly apprehended defendants,
no criminal masterminds. By the evening of
December 15, just twenty-four hours after
Pasquariello had escaped, an FBI agent swore
a criminal complaint before a federal magis-
trate judge. The complaint included all of the
foregoing facts and charged defendants with
one count of kidnaping in violation of 18
U.S.C. § 1201(a)(1). The FBI arrested defen-
dants the next day.
On January 3, 2001, a grand jury indicted
defendants on one count of kidnaping, 18
U.S.C. § 1201(a)(1). On May 16, 2001, the
grand jury returned a superseding indictment.
Count 1 charged conspiracy to commit kidnap-
ing, 18 U.S.C. § 1201(c); count 2 charged kid-
naping, 18 U.S.C. § 1201(a)(1); count 3
charged use of a firearm during and in relation
to the kidnaping, 18 U.S.C. § 924(c)(1);
count 4 charged carjacking, 18 U.S.C.
§ 2119(2); count 5 charged using a firearm
during and in relation to the carjacking,
18 U.S.C. § 924(c)(1).
The jury convicted defendants on all five
counts. The district court sentenced them to
405 months’ imprisonment on each of the con-
spiracy, kidnaping, and carjacking counts, with
these sentences to run concurrently. It
sentenced them to 84 months on count 3 (us-
ing a firearm during and in relation to the kid-
naping) and 300 months on count 5 (using a * Judge of the United States Court of Appeals
for the Sixth Circuit, sitting by designation.

-- 2 of 16 --

3
firearm during and in relation to the carjack-
ing), with these sentences to run consecutively
to each other and to the 405-month sentence.
The total sentence is therefore 789 months, or
65 years and 9 months. The court also
imposed, as a special condition of supervised
release, that defendants shall not possess
“sexually oriented or sexually stimulating
materials.”
Defendants challenge the timeliness of their
indictments, their multiple § 924(c)(1)
convictions, a jury instruction, the application
of two sentencing guidelines, the length of
their sentence for the carjacking conviction,
and the special condition of supervised release.
We address these questions in roughly
chronological order from the pre-trial stage to
trial to sentencing.
II.
Defendants argue that all counts but the
kidnaping count were untimely under the
Speedy Trial Act (“STA”), 18 U.S.C. § 3161
et seq., and therefore should have been
dismissed. We review interpretations of the
STA de novo and related factual questions for
clear error. United States v. Martinez-
Espinoza, 299 F.3d 414, 416 (5th Cir. 2002).
We disagree with defendants’ contentions.
The STA requires an “indictment charging
an individual with the commission of an
offense” to be filed within thirty days of arrest.
18 U.S.C. § 3161(b). If “a complaint is filed
charging such individual with an offense,” and
the indictment charging the offense is untime-
ly, “such charge against that individual
contained in such complaint shall be dis-
missed.” 18 U.S.C. § 3162(a)(1). The
complaint, issued on December 15, 2000,
charged kidnaping. Defendants were arrested
on December 16 and were timely indicted for
kidnaping on January 3, 2001. The
superseding indictment, issued May 16,
charged the remaining four counts.
Defendants argue that these charges are
untimely and must be dismissed under
§ 3162(a)(2).
Our precedents involve two kinds of
allegedly untimely indictments. First, a
defendant is charged in a complaint, arrested,
and timely indicted for the offense charged in
the complaint. Later (and after the STA
period has run), a superseding indictment
charges new offenses not contained in the
complaint. United States v. Bailey, 111 F.3d
1229 (5th Cir. 1997); United States v. Giwa,
831 F.2d 538 (5th Cir. 1987). Second, a de-
fendant is charged in a complaint, arrested, and
timely indicted for an offense not charged in
the complaint. Later (and after the STA pe-
riod has run), a superseding indictment alleges
the offense charged in the complaint.
Martinez-Espinoza, 299 F.3d at 415-16;
United States v. Perez, 217 F.3d 323 (5th Cir.
2000). This appeal presents the first situation,
so Bailey and Giwa control.
In Giwa and Bailey, defendants were
charged and arrested for a specific offense and,
after the STA period had run, were charged, in
a superseding indictment, with other offenses.1
The court rejected the STA challenge in both
cases and stated the general rule in Giwa: “If
the Government fails to indict a defendant
within thirty days of arrest, the Act requires
dismissal of only the offense or offenses
1 Bailey, 111 F.3d at 1235 (arrested for mis-
demeanor receipt of stolen goods and entering a
military base, later indicted for sexual assault and
felony receipt of stolen goods); Giwa, 831 F.2d at
540 (arrested for credit card fraud, later indicted
for mail fraud and social security fraud).

-- 3 of 16 --

4
charged in the original complaint.” Giwa,
831 F.2d at 541.2 Here, the original complaint
charged defendants with kidnaping, for which
the grand jury timely indicted them. The
superseding indictment charged separate
offenses, which does not violate the STA un-
der the rule of Giwa and Bailey.
At the same time, Giwa identified, and Bai-
ley elaborated on, a “gilding” exception to this
general rule. “[A] gilded charge is one that
merely annotates in more detail the same
charge alleged in the initial accusatory
instrument.” Bailey, 111 F.3d at 1236. As an
example of a gilded charge, Bailey cited a case
involving a superseding indictment that merely
added new supporting facts to the charge in
the complaint. Id. (citing United States v. Bi-
lotta, 645 F. Supp. 369, 371 (E.D.N.Y.
1986)). Defendants cannot take advantage of
the gilding exception, however, because the
superseding indictment did not merely supply
supporting facts for the kidnaping charge, but
added four entirely new charges.
Defendants rely on an old and irrelevant
Ninth Circuit case and a secondary treatise to
cobble together the argument that the
complaint really charges all five counts
because the facts in the complaint are sufficient
to establish each charge. They cite no caselaw
for this argument, nor could they, because the
theory directly contradicts Giwa and Bailey.
Moreover, the government may have had a
good reason to charge defendants solely with
kidnaping in the complaint and first indictment:
The evidence collected by the time of the com-
plaint and first indictment may not have
supported the other four counts.3 Defendants’
proposed rule would encourage the gov-
ernment to “throw the book” immediately and
needlessly at suspects to avoid STA violations.
We decline to adopt a rule that contradicts our
precedents and encourages imprudent
prosecutions.4
III.
A.
Defendants challenge their multiple § 924-
(c)(1) convictions, arguing that they may be
convicted under that statute only once for the
2 See also Bailey, 111 F.3d at 1236 (“The clear
mandate of § 3162(a)(1) requires dismissal of only
those charges contained in the original com-
plaint[.]”) (quoting Giwa, 831 F.2d at 543).
3 The government does not actually offer this
explanation for the delay, but we assume it must
occur often during investigations. Moreover,
§ 3162(a)(1) establishes a strict rule, so not even
the less justifiable explanation of “negligent man-
agement” by the United States Attorney under-
mines an otherwise valid indictment. Giwa, 831
F.2d at 543.
4 Defendants also argue that the Double Jeopar-
dy Clause makes count 3 untimely under the STA.
In particular, they contend that count 2 (kidnaping)
and count 3 (using a firearm during and in relation
to the kidnaping) fail the “same elements” test of
Blockburger v. United States, 284 U.S. 299, 304
(1932). Thus, counts 2 and 3 effectively charge
the same offense, which the complaint also
charged. T he STA clock for count 3, on this
theory, began to tick on December 16, 2000, and
expired well before the government indicted de-
fendants on count 3 on May 16, 2001. Defendants
conclude, therefore, that the indictment on count 3
is untimely under the STA.
Defendants concede that United States v. Mar-
tinez, 28 F.3d 444, 446 (5th Cir. 1994), forecloses
this argument, and they raise the question merely
for further review. Martinez held that the Hobbs
Act, 18 U.S.C. § 1951, and § 924(c)(1) satisfy the
Blockburger test.

-- 4 of 16 --

5
single use of a single firearm. We review
questions of statutory interpretation de novo.
United States v. Hanafy, 302 F.3d 485, 487
(5th Cir. 2002). As applied to the facts of this
case, § 924(c)(1) is ambiguous, so we apply
the rule of lenity and decide that the statute
does not authorize multiple convictions for a
single use of a single firearm based on multiple
predicate offenses.
1.
Section 924(c)(1) states in relevant part
that “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 vio-
lence,” be sentenced to varying terms of
imprisonment based on the kind of firearm or
the nature of its use. 18 U.S.C. § 924(c)(1).
Kidnaping and carjacking are crimes of
violence. 18 U.S.C. § 924(c)(3). Thus,
defendants were charged with, and convicted
of, two § 924(c)(1) counts (counts 3 and 5),
one each for the predicate offenses of
kidnaping and carjacking. They argue that
§ 924(c)(1) does not authorize, or, if it does,
the Double Jeopardy Clause prohibits, these
multiple § 924(c)(1) convictions for a single
use of a single firearm based on multiple
predicate offenses.
The government answers that United States
v. Privette, 947 F.2d 1259 (5th Cir. 1991),
controls this case and authorizes the dual con-
victions, but the government misapprehends
the holding of Privette. The precise question
presented was whether a verdict could be up-
held if it did not link the multiple § 924(c)(1)
convictions to distinct predicate offenses. Id.
at 1262. Privette therefore addressed the
predicate offenses necessary to support
multiple § 924(c)(1) convictions, not the use,
carriage, or possession of a firearm or firearms
necessary to support such convictions. We
held in Privette that predicate offenses
“separated by the measure of the double
jeopardy clause can each support § 924(c)
convictions,” as long as “each firearms offense
[is] sufficiently linked to a separate [predicate]
offense to prevent two convictions under
§ 924(c) on the same [predicate] offense.” Id.
at 1262-63. We also noted that the
government typically can establish a direct
linkage in the indictment and jury charge. Id.
at 1263.
Privette, then, is a constitutional decision
based on the Double Jeopardy Clause. It does
not address the precise statutory question
whether § 924(c)(1) authorizes multiple
convictions for a single use of a single firearm
based on multiple predicate offenses.5
5 Likewise, the parties cite several cases from
other circuits that are not precisely on point,
because they do not address the nature of the use,
carriage, or possession of a firearm or firearms
necessary to support multiple § 924(c)(1) con-
victions. Instead, they address the nature of the
predicate offenses necessary to support such con-
victions or whether multiple convictions from the
same indictment can be a “second or subsequent
conviction” for sentencing purposes. See, e.g.,
United States v. Casiano, 113 F.3d 420, 424-26
(3d Cir. 1997); United States v. Johnson, 25 F.3d
1335, 1336-38 (6th Cir. 1994) (en banc) (Siler, J.);
United States v. Luskin, 926 F.2d 372, 374-78 (4th
Cir. 1991); United States v. Nabors, 901 F.2d
1351, 1357-59 (6th Cir. 1990); United States v.
Fontanilla, 849 F.2d 1257, 1258-59 (9th Cir.
1988). Like our decision in Privette, therefore,
these cases do not bear on the main question at
issue here, namely, whether § 924(c)(1) authorizes
multiple convictions for a single use of a single
firearm based on multiple predicate offenses.

-- 5 of 16 --

6
In fact, Privette does not plainly indicate
the number of firearms involved. The factual
part of the opinion contains a singular
reference to “weapons,” which could mean
that multiple firearms were involved, though
not all weapons are necessarily firearms. Id. at
1261. The analysis part of the opinion,
however, contains multiple and contradictory
references to “a firearm” and “firearms.” Id. at
1262-63. It is most likely that Privette
involved multiple firearms, but at best the
opinion is ambiguous on this point. Either
way, Privette does not explicitly or implicitly
control this case.
Privette is not completely beside the point,
however, because it forecloses defendants’
constitutional argument. They contend that
the Double Jeopardy Clause prohibits multiple
convictions for a single use of a single firearm
based on multiple predicate offenses, even if
§ 924(c)(1) authorizes the convictions as a
statutory matter. This argument is nothing
more than a disagreement with Privette.
If the predicate offenses are “separated by
the measure of the double jeopardy clause,” id.
at 1261, there can be no constitutional in-
firmities with multiple convictions authorized
by § 924(c)(1). The predicate offenses of kid-
naping and carjacking obviously have different
elements, hence they pass the same-elements
test of Blockburger, 284 U.S. at 304.
Defendants therefore cannot challenge their
multiple § 924(c)(1) convictions on
constitutional grounds.
2.
Having dispensed with these preliminary
matters, we now reach the main issue, namely,
whether § 924(c)(1) authorizes multiple
convictions for a single use of a single firearm
based on multiple predicate offenses. This is
purely a question of statutory interpretation,
with two parts. First, we must ascertain the
unit of prosecution for § 924(c)(1). See Unit-
ed States v. Universal C.I.T. Credit Corp., 344
U.S. 218 (1952). We conclude that the unit of
prosecution is the use, carriage, or possession
of a firearm during and in relation to a
predicate offense. Second, we must determine
whether, given this unit of prosecution, § 924-
(c)(1) authorizes multiple convictions for a
single use of a single firearm based on multiple
predicate offenses. Though this question is
close, and reasonable minds could disagree,
this very ambiguity compels us to apply the
rule of lenity and answer the question in the
negative. See Bell v. United States, 349 U.S.
81 (1955).
a.
The parties dispute what is the unit of pro-
secution for § 924(c)(1). The government ar-
gues that it is the predicate offense, whereas
defendants argue that it is the use, carriage, or
possession of a firearm. Both are correct, but
only partly so. The odd nature of the statute
makes the unit of prosecution neither the pre-
dicate offense nor the use, carriage, or
possession of a firearm; rather, the unit of
prosecution is the two combined.
This court has not expressly decided the
unit of prosecution for § 924(c)(1), though
United States v. Correa-Ventura, 6 F.3d 1070
(5th Cir. 1993), suggested the answer. There
the defendant was convicted of one count of
§ 924(c)(1) based on two predicate offenses
and multiple firearms. Id. at 1072-73. He
challenged the jury instruction for his § 924-
(c)(1) conviction because it allowed the jury to
find him guilty without unanimously agreeing
on which particular firearm he had used. Id. at
1075-76. We rejected this challenge,
explaining in part that “[t]he mere carrying or

-- 6 of 16 --

7
use of a firearm is not the criminal actus reus
proscribedSSrather it is the employment of the
weapon in the context of another predefined
crime. . . . Accordingly, the plain language of
the statute does not imply a requirement of
unanimity as to the particular firearm em-
ployed.” Id. at 1083.
Although Correa-Ventura did not directly
address the question, this passage nonetheless
suggests that the unit of prosecution is the use,
carriage, or possession of a firearm during and
in relation to a predicate offense, with slightly
more emphasis on the use, carriage, or
possession of a firearm. The text of § 924-
(c)(1) bears out this suggestion: The conduct
of using, carrying, or possessing a firearm
constitutes the active verbs (“any person who
. . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a
firearm”), whereas the predicate offenses
appear in a separate clause (“during and in
relation to any crime of violence or drug
trafficking crime”). Moreover, the many
subsections of § 924(c)(1) adjust the sentence
for a conviction based on the kind of firearm
or the nature of its use during the predicate
offense, not on the kind or nature of the
predicate offense.
The decision in Simpson v. United States,
435 U.S. 6, 10 (1978), also indicates that the
unit of prosecution for § 924(c)(1) is the use,
carriage, or possession of a firearm during and
in relation to a predicate offense, with slightly
more emphasis on the use, carriage, or
possession of a firearm. The Court explained
that Ҥ 924(c) creates an offense distinct from
the underlying federal felony.” In other words,
§ 924(c)(1) does not criminalize the predicate
offenses, for example, kidnaping and carjack-
ing, which are elsewhere proscribed. And,
“[t]o base a statute’s unit of prosecution on an
offense that the statute does not prohibit is il-
logical.” United States v. Camps, 32 F.3d
102, 109 (4th Cir. 1994).
Though the emphasis is on the use,
carriage, or possession of a firearm, and not on
the predicate offense, simple use, carriage, or
possession of a firearm also is not the unit of
prosecution. Many citizens exercise their Sec-
ond Amendment rights, United States v. Em-
erson, 270 F.3d 203 (5th Cir. 2001), cert.
denied, 122 S. Ct. 2362 (2002), by routinely
using, carrying, or possessing a firearm, and
§ 924(c)(1) obviously does not prohibit that
law-abiding conduct. Instead, it regulates the
use, carriage, or possession of a firearm only
during and in relation to a predicate offense.
Thus, the unit of prosecution for § 924(c)(1) is
the use, carriage, or possession of a firearm
during and in relation to a predicate offense.
In so deciding, we agree with the similar rea-
soning of the Fourth Circuit in Camps and
disagree with the contrary conclusions of the
Second and Sixth Circuits.6
b.
This unit of prosecution aptly frames our
6 See United States v. Taylor, 13 F.3d 986,
993-94 (6th Cir. 1994) (“The purpose of § 924-
(c)(1) . . . is to target those defendants who choose
to involve weapons in an underlying narcotics
crime or crime of violence. Consequently, the
predicate offense, not the firearm, is the object of
§ 924(c)(1).”); United States v. Lindsay, 985 F.2d
666, 674-75 (2d Cir. 1993) (“When viewed as a
whole . . . this firearms statute is ambiguous as to
the appropriate unit of prosecution.”). We, like the
Fourth Circuit, disagree with Taylor, because it
conflicts with the text of § 924(c)(1) and apparent
congressional intent, and with Lindsay because it
creates ambiguity with an interpretation not sup-
ported by text or logic. See Camps, 32 F.3d at
109.

-- 7 of 16 --

8
task. Were the unit of prosecution the
predicate offense, we easily could affirm
defendants’ multiple § 924(c)(1) convictions
based on the multiple predicate offenses.
Likewise, were the unit of prosecution the
mere use, carriage, or possession of a firearm,
we just as easily could vacate one of the
convictions. But given the true unit of
prosecution, we must determine whether, as a
matter of statutory interpretation, § 924(c)(1)
authorizes multiple convictions for a single use
of a single firearm during and in relation to
multiple predicate offenses.7
“Congress could no doubt” authorize such
convictions; “[t]he question is: did it do so?”
Bell, 349 U.S. at 82-83. We cannot say that
§ 924(c)(1) unambiguously authorizes multiple
convictions for a single use of a single firearm
during and in relation to multiple predicate of-
fenses, so we apply the rule of lenity.
By its text, § 924(c)(1) criminalizes the use
of a firearm during and in relation to a
predicate offense. The statute imposes
penalties on “any person who, during and in
relation to any crime of violence . . . uses . . .
a firearm.” 18 U.S.C. § 924(c)(1)(A). Given
the unit of prosecution, this language allows
for only as many counts as there are uses of
the firearm.8 Defendants “used” the firearm
only once, namely, when Phipps put the
firearm to Pasquariello’s head.
True enough, this single use allowed
defendants to commit two crimes. By
brandishing the firearm, they forced
Pasquariello to surrender her car, and they
abducted her. They could have committed
either offense without committing the other:
They could have taken Pasquariello’s car
without abducting her, or vice versa. In this
sense, the single use of the firearm served two
purposes. Yet, just as motive often is the
essential fact at trial but generally not a
statutory element, § 924(c)(1) criminalizes the
use of a firearm during and in relation to the
predicate offense, not in regard to a
defendant’s purposes in using the firearm.
The legislative history of § 924(c)(1) offers
some, albeit limited, support for this
interpretation. Representative Poff, the
sponsor of the original version of § 924(c)(1),
declared that its purpose was “to persuade the
man who is tempted to commit a felony to
leave his gun at home.” 114 CONG. REC.
22,231 (1968). Senator Mansfield, who
sponsored one of the original amendments to
§ 924(c)(1), stated that the law “provides for
the first time a separate and additional penalty
for the mere act of choosing to use or carry a
gun in committing a crime under federal law.”
115 CONG. REC. 34,838 (1969). Though these
oft-cited statements are hardly definitive, they
indicate that some of the original authors of
§ 924(c)(1) aimed the law at the choice to use
a firearm during and in relation to a predicate
offense. Defendants chose to use a single
firearm a single time, suggesting that they
should face only a single count of violating
§ 924(c)(1).
We readily acknowledge, however, the rea-
sonableness of the government’s position. The
7 From this point forward, we speak only of use,
not of carriage or possession, because defendants
undoubtedly used the firearm during their crimes.
See Bailey v. United States, 516 U.S. 137, 144
(observing that the “use” offense of § 924(c)
requires “active employment” of a firearm).
8 Or, if defendants had not used their firearm,
the language allows as many counts as the number
of firearms carried or possessed.

-- 8 of 16 --

9
government’s initial premise that the unit of
prosecution for § 924(c)(1) is the predicate of-
fense weakens its argument. Yet, one could
accept, as the unit of prosecution, the use of a
firearm during and in relation to a predicate
offense, and still reasonably argue that § 924-
(c)(1) permits multiple convictions for a single
use of a single firearm during and in relation to
multiple predicate offenses.
The crux of this argument would be the
unusual neither-fish-nor-fowl quality of § 924-
(c)(1), which criminalizes neither unadorned
use of a firearm nor the predicate offense, but
only the two combined, as the unit of
prosecution indicates. If § 924(c)(1) were a
simple firearm statute unrelated to other
offenses, defendants obviously would face
only one count. As written, however, § 924-
(c)(1) criminalizes the use of a firearm during
and in relation to a predicate offense. With
two predicate offenses related to the single
use, one might argue, defendants therefore
should face two counts.
Though the government’s position does not
persuade us, it is not unreasonable, but the
statute’s ambiguity compels us to apply the
rule of lenity, under which a court should re-
solve doubts about an ambiguous criminal stat-
ute in favor of the defendant. United States v.
Reedy, 304 F.3d 358, 367-68 (5th Cir. 2002).
The Supreme Court first and most famously
applied the rule in Bell, 349 U.S. at 82, in
which the petitioner was convicted of two vio-
lations of the Mann Act’s prohibition against
knowingly transporting “any woman or girl” in
interstate commerce for immoral purposes,
based on his transporting two women at the
same time in the same vehicle. The Court ac-
knowledged that “argumentative skill . . .
could persuasively and not unreasonably reach
either of the conflicting constructions.” Id. at
83. The Court therefore held that “the
ambiguity should be resolved in favor of
lenity.” Id.9 Because § 924(c)(1) is
ambiguous on the facts of this case, we must
follow Bell and conclude that the statute does
not unambiguously authorize multiple
convictions for a single use of a single firearm
based on multiple predicate offenses.
Only two other circuits seem to have
addressed the precise question whether § 924-
(c)(1) authorizes multiple convictions for a sin-
gle use of a single firearm based on multiple
predicate offenses, and both have applied the
rule of lenity.10 In United States v. Wilson,
160 F.3d 732 (D.C. Cir. 1998), the defendant
was convicted of killing a witness in violation
of 18 U.S.C. § 1512, first degree murder while
armed in violation of D.C. CODE §§ 22-2401,
-3202, and two counts of § 924(c)(1). Noting
that it had already found § 924(c)(1)
ambiguous in the converse factual situation of
9 See also Smith v. United States, 508 U.S.
223, 246 (1993) (Scalia, J., dissenting) (“Even if
the reader does not consider the issue to be as clear
as [we] do, he must at least acknowledge, [we]
think, that it is eminently debatableSSand that is
enough, under the rule of lenity, to require finding
for [defendants] here.”).
10 Two Tenth Circuit cases appear, on their
facts, to uphold multiple § 924(c)(1) convictions
for a single use of a single firearm based on mul-
tiple predicate offenses. See United States v. Ro-
mero, 122 F.3d 1334 (10th Cir. 1997); United
States v. Floyd, 81 F.3d 1517 (10th Cir. 1996). In
neither case, though, did the court directly address
the question. Instead, Romero addressed whether
a second § 924(c)(1) conviction in the same crim-
inal proceeding is a “second or subsequent” con-
viction under § 924(c)(1)(C), Romero, 122 F.3d at
1343-44, and Floyd, 81 F.3d at 1526-27, ad-
dressed the constitutional double jeopardy question.

-- 9 of 16 --

10
multiple § 924(c)(1) convictions based on a
single predicate offense, the court applied the
rule of lenity. Wilson, 160 F.3d at 749 (citing
United States v. Anderson, 59 F.3d 1323,
1333 (D.C. Cir. 1995) (en banc)). The court
deemed this reasoning “no less applicable
where a single use of a gun results in more
than one offense,” and therefore applied the
rule of lenity to these facts as well. Id.
In United States v. Finley, 245 F.3d 199
(2d Cir. 2001), cert. denied, 534 U.S. 1144
(2002), defendant was convicted of one count
of distribution and one count of possession
with intent to distribute, both in violation of 21
U.S.C. § 841, and two counts of § 924(c)(1).
An undercover agent purchased some of the
defendant’s cocaine stash in a confirmatory
buy and, several minutes later, other agents
raided the defendant’s house, where they dis-
covered the remainder of the stash and a fire-
arm. Id. at 201-02. The court agreed with “a
widely-shared view that the statute’s text is
ambiguous” and applied the rule of lenity. Id.
at 207. In particular, the court held that
§ 924(c)(1) “does not clearly manifest an in-
tention to punish a defendant twice for con-
tinuous possession of a firearm in furtherance
of simultaneous predicate offenses consisting
of virtually the same conduct.” Id.
By discussing Wilson and Finley, we do not
mean to suggest that we agree with their in-
terpretation of § 924(c)(1) based on the
particular facts presented in those cases.11
Rather, they merely illustrate the difficulties in
interpreting § 924(c)(1) and the not infrequent
need to resolve ambiguities in favor of criminal
defendants via the rule of lenity.
Finally, we stress that our holding is limited
by the unusual fact that defendants gave the
firearm to Medina immediately after using it.
Had, for example, they kept the firearm and
used it to restrain or intimidate Pasquariello
later, we might have affirmed their multiple
convictions.12 We also might have done so if
defendants had used, carried, or possessed
multiple firearms when they took Pasquariel-
lo’s car and kidnaped her.
These examples, however, are not the facts
before us. In what surely must be a rare event,
defendants used a single firearm a single time
for a dual criminal purpose, then immediately
discarded it. In light of this extraordinary fact,
§ 924(c)(1) does not unambiguously authorize
multiple convictions for a single use of a single
firearm based on multiple predicate offenses.
“The proper remedy for multiplication of
punishment is to vacate the sentences on all
the counts and remand for resentencing with
instructions that the count elected by the gov-
11 In particular, we are skeptical of, and do not
adopt, the Second Circuit’s holding in Finley, 245
F.3d at 207, that § 924(c)(1) does not authorize
multiple convictions based on “continuous” pos-
session of a firearm during “simultaneous” predi-
cate offenses consisting of “virtually” the same
(continued...)
(...continued)
conduct. Aside from the fact that the predicate
offenses in Finley were not simultaneous, we sus-
pect that this test creates more ambiguity than it
resolves by importing a temporal concept into
§ 924(c)(1). See Finley, 245 F.3d at 208-11
(Winter, J., dissenting).
12 See Wilson, 160 F.3d at 749 (“[T]here may
be circumstances in which such [distinct] offenses
could support more than one § 924(c) chargeSSas
where, for example, the evidence shows distinct us-
es of the firearm, first to intimidate and then to
kill.”).

-- 10 of 16 --

11
ernment be dismissed. The defendant[s are]
then to be resentenced.” Privette, 947 F.2d at
1263 (citation omitted). Thus, we vacate the
instant sentences and remand for resentencing
on all counts after the government successfully
moves to dismiss either count 3 or count 5.
B.
Gilley argues that the district court
committed reversible error by inadvertently
instructing the jury, on one occasion, that it
could find him guilty of the conspiracy count
by a prepo nderance of the evidence.13 Gilley
did not object to the instruction at trial, so we
review the inadvertent instruction for plain
error.14 See FED. R. CRIM. P. 52(b).
Plain error review is very limited. There
must be “error” that is “plain” and that affects
“substantial rights,” and even then we have
discretion not to correct the error unless it “se-
riously affects the fairness, integrity or public
reputation of judicial proceedings.” United
States v. Olano, 507 U.S. 725, 732 (1993) (ci-
tation omitted). We conclude that the district
court’s inadvertent mistake is not reversible
error, and certainly not reversible plain error.
The question is not whether the court’s un-
witting mention of the preponderance of the
evidence standard while discussing count 1 is
erroneous15SSeveryone concedes it isSSbut
whether this single misstatement makes the in-
struction defective as a whole. See Cage v.
Louisiana, 498 U.S. 39, 41 (1990).
Moreover, “the proper inquiry is not whether
the instruction ‘could have’ been applied in an
unconstitutional manner, but whether there is
a reasonable likelihood that the jury did so
apply it.” Victor v. Nebraska, 511 U.S. 1, 6
(1994) (citing Estelle v. McGuire, 502 U.S.
62, 72 & n.4 (1991)).16
13 Phipps adopts Gilley’s argument, but the er-
roneous instruction refers only to Gilley. Phipps
therefore cannot challenge his convictions on this
ground.
14 Gilley contends that an erroneous instruction
on the burden of proof is not susceptible to plain
error review. In Sullivan v. Louisiana, 508 U.S.
275 (1993), the Court held that an erroneous in-
struction on the meaning of reasonable doubt is a
structural error not susceptible to harmless error
review. Harmless error, however, is a rule of con-
stitutional law, whereas plain error is a rule of ap-
pellate procedure. An error not susceptible to
harmless error review is nevertheless susceptible to
plain error review if the defendant did not object at
trial. See, e.g., United States v. Shunk, 113 F.3d
31, 36 (5th Cir. 1997). In any event, Sullivan does
not control this case, because here the general jury
instruction on reasonable doubt was proper.
15 The district court stated:
Now, once the jury has reached a unan-
imous decision as to Count 1 of the indict-
ment as it affects Defendant Gilley, then the
foreperson will write in the decision, the
unanimous decision, either guilty or not
guilty.
If the jury concludes from a prepon-
derance of the evidence that the defendant
has committed the offense charged by Count
1 of the indictment, that is, Defendant Gil-
ley, then the verdict is guilty and the fore-
person will write that in. If the jury con-
cludes unanimously that the government has
not proved beyond a reasonable doubt that
Defendant Gilley committed the offense
charged by Count 1 of the indictment, then
the foreperson will write in not guilty.
(Emphasis added.)
16 In Cage, the Court suggested the speculative
(continued...)

-- 11 of 16 --

12
Gilley argues that the misstatement infected
the entire jury instruction and irretrievably pre-
judiced his conviction on all counts by allow-
ing the jury to find him guilty by less than
beyond a reasonable doubt. See In re
Winship, 397 U.S. 358, 364 (1970). There is,
however, no reasonable likelihood, under a
Cage-Victor analysis, that the jury in fact did
apply the misstatement and convict Gilley of
count 1, much less all counts, by a
preponderance of the evidence. Cage and
Victor involved a dubious definition of
“reasonable doubt” in the general jury in-
struction on the meaning of reasonable doubt.
This situation is much more troublesome than
is what happened in this case, a single slip of
the tongue in one particular instruction.
Moreover, Gilley concedes that the general
jury instruction on reasonable doubt, plus all
other jury instructions, correctly stated the
law. In the nearly identical case of United
States v. Musgrave, 483 F.2d 327, 335 (5th
Cir. 1973), we affirmed a conviction despite a
similar error, because the “[i]solated
statements which appear prejudicial when
taken out of context [were] innocuous when
viewed in the light of the entire trial.”17
During the jury charge in the instant case, the
court correctly instructed, on fifteen occasions,
on the meaning of reasonable doubt and its
applicability.18
Finally, we have affirmed several
convictions with worse errors in the general
jury instruction on reasonable doubt; we
disapproved of some particular wording but
upheld the instruction as a whole.19 The
isolated and inadvertent error here is certainly
no worse than are the errors we excused in
those cases. Though we encourage the courts
to be vigilant in their jury instructions, we
rarely will reverse a conviction based on a
district court’s insignificant slip of the tongue.
IV.
A.
Phipps contends that the district court
should not have sentenced him under the crim-
inal sexual abuse guideline, U.S.S.G. § 2A3.1,
because he did not commit sexual assault on
Pasquariello. Reviewing the district court’s
legal interpretation of the sentencing guidelines
de novo and its factual findings for clear error,
United States v. Huerta, 182 F.3d 361, 364
(5th Cir. 1999), we affirm.
The district court used the criminal sexual
abuse guideline, U.S.S.G. § 2A3.1, instead of
the kidnaping guideline, U.S.S.G. § 2A4.1, to
sentence Phipps, because § 2A3.1 has a higher
total offense level. See U.S.S.G. § 3D1.3(a).
(...continued)
“could have” inquiry. McGuire, however, ex-
pressly overruled that suggestion and oriented the
inquiry to what the jury in fact did.
17 Gilley counters with United States v. Murray,
784 F.2d 188 (6th Cir. 1986). Murray, however,
is distinguishable, because the misstatements oc-
curred in the general jury instruction on reasonable
doubt, and the Sixth Circuit deemed the erroneous
instruction reversible when combined with another
error.
18 See Musgrave, 483 F.3d at 335 (observing
that “[i]n his lengthy charge to the jury in the pres-
ent case, the trial judge correctly depicted the rea-
sonable doubt standard at least nine times”).
19 See, e.g., Dupuy v. Cain, 201 F.3d 582, 586
(5th Cir. 2000); Schneider v. Day, 73 F.3d 610,
611 (5th Cir. 1996); Weston v. Ieyoub, 69 F.3d 73,
74 (5th Cir. 1995); Gaston v. Whitley, 67 F.3d
121, 121-22 (5th Cir. 1995).

-- 12 of 16 --

13
The court reasoned that § 2A3.1 applies to
Phipps even though he did not assault Pas-
quariello, because he was responsible for Gil-
ley’s assault under the relevant conduct
guideline, U.S.S.G. § 1B1.3(a)(1). Phipps
argues that the court clearly erred in that he
did not assault Pasquariello and could not have
foreseen Gilley’s assault.
The court did not clearly err by applying
§ 2A3.1. Medina testified that defendants de-
clared their intent to steal a car from a woman
whom they could also kidnap for the purpose
of raping her. Phipps forced Pasquariello into
the car at gunpoint and restrained her by driv-
ing the car while Gilley forced her to perform
sex acts on him and then raped her. Phipps
attempted sexually to assault Pasquariello, and
he stopped only because of Gilley’s fear of
detection by passing drivers. Given this
evidence, the court easily concluded that
Phipps reasonably could foresee Gilley’s
sexual assault on Pasquariello and thus could
be liable for the assault under § 1B1.3(a)(1).
B.
Defendants assert the district court clearly
erred by enhancing their sentence under the
obstruction of justice guideline, U.S.S.G.
§ 3C1.1. Reviewing the court’s factual
findings for clear error, United States v. Smith,
203 F.3d 884, 891 (5th Cir. 2000), we affirm.
Section 3C1.1 permits a two-level
enhancement for obstruction of justice during
an investigation. The enhancement is not
appropriate merely because a defendant denies
his guilt. U.S.S.G. § 3C1.1, cmt. n.2, but only
if the defendant “provid[es] a materially false
statement to a law enforcement officer that
significantly obstructed or impeded the official
investigation or prosecution of the instant
offense.” Id. at cmt. n. 4(g) (emphasis added).
Both defendants misidentified Medina dur-
ing the FBI’s investigation. Gilley identified
him as an unnamed and unknown black man to
whom he paid five dollars to drive him and
Phipps to Pasquariello’s home. Phipps
identified Medina as a local man named Javier,
whose identity he otherwise did not know.
The investigating agent testified that these lies
delayed her inquiry for several months.
Because of the conflicting false statements
and defendants’ untrustworthiness, the agent
was forced to subpoena and search defen-
dants’ telephone records for the unknown third
defendant. She eventually interviewed
Medina, who confessed to his involvement.
This discovery was critical to the investigation,
because Medina, who gave the firearm to
defendants, provided the only evidence, other
than Pasquariello’s testimony, that defendants
had used a firearm. Based on these facts, the
district court found that defendants’
misidentification of Medina “significantly
obstructed” the FBI’s investigation, so the
court enhanced the sentences by two levels.
Defendants argue that the district court
clearly erred, because the investigating agent
did not fully believe their lies and would have
subpoenaed their telephone records anyway.
We rejected this same argument in Smith, 203
F.3d at 891, in which we affirmed an
enhancement because a defendant misidentified
her female co-defendants as black males to
throw the investigators off the trail. The de-
fendant contended that the investigation was
not “significantly obstructed or impeded” by
her lie. Id. We rejected this reasoning solely
because the affirmative misidentification sent
investigators on the wrong trail, even though
they admitted they would have found the co-
defendants eventually in any event. Id. Smith
therefore forecloses defendants’ argument and

-- 13 of 16 --

14
supports the district court’s finding that the
evidence justified the enhancement.
C.
The district court erred by sentencing de-
fendants to 405 months on the carjacking
count, because the maximum sentence is 300
months. 18 U.S.C. § 2119(2). The question
is how we should treat this error. Defendants
argue that we must vacate and remand, where-
as the government contends that we may de-
cline to correct the error, because the carjack-
ing sentence runs concurrently with the proper
405-month sentences for kidnaping and
conspiracy to kidnap. Because defendants
must be resentenced anyway, we vacate the
carjacking sentence as well.
Ordinarily, we would let this kind of
erroneous sentence stand without correction.
Defendants give no good reason to create
make-work for ourselves, the district court, or
counsel. We correct plain error only where we
determine that the error “seriously affects the
fairness, integrity, or public reputation of judi-
cial proceedings.” United States v. Meshack,
225 F.3d 556, 577 (5th Cir. 2000), as
modified, 244 F.3d 367 (5th Cir.) (citation
omitted), cert. denied, 534 U.S. 861 (2001).
Though the error here could not be more plain,
defendants are not prejudiced, because the car-
jacking sentence runs concurrently with the
valid longer sentences for conspiracy and kid-
naping. Meshack, 244 F.3d at 368.
Moreover, defendants do not assert “that our
decision not to correct the sentence will have
collateral consequences.” Id.
If we had affirmed defendants’ convictions
and sentences in all other respects, we would
not disturb this sentence. Yet, we vacate their
sentences and remand for resentencing on all
counts as a result of the § 924(c)(1) error. Be-
cause further proceedings are now
unavoidable, we remand for resentencing on
the carjacking conviction, as well.
Moreover, at the sentencing hearing the
district court announced its desire to sentence
defendants to the maximum term permitted by
law. When the court made the carjacking sen-
tence run concurrently with the conspiracy and
kidnaping sentences, it assumed two valid
§ 924(c)(1) convictions. With only one valid
§ 924(c)(1) conviction, the court may wish to
reconsider whether the carjacking sentence
should run concurrently or consecutively with
the conspiracy and kidnaping sentences. We
therefore remand with instruction that the dis-
trict court may reconsider this question under
our limited remand rule. See United States v.
Marmolejo, 139 F.3d 528 (5th Cir. 1998).
D.
Defendants aver that their special condition
of supervised release is unconstitutionally
vague. They did not object at or after the sen-
tencing hearing, so we review for plain error.
United States v. Wright, 86 F.3d 64, 64 (5th
Cir. 1996). We affirm.
As a special condition of supervised release,
the district court prohibited defendants from
possessing “sexually oriented or sexually stim-
ulating materials” and from “patroniz[ing] any
place where such material or entertainment is
available.” Defendants do not argue that this
condition violates their First Amendment
rights, but rather their “separate due process
right to conditions of supervised release that
are sufficiently clear to inform [them] of what
conduct will result in [their] being returned to
prison.” United States v. Guagliardo, 278
F.3d 868, 872 (9th Cir.), cert. denied, 123 S.
Ct. 515 (2002).

-- 14 of 16 --

15
Defendants rely on Guagliardo and United
States v. Loy, 237 F.3d 251 (3d Cir. 2001), in
both of which the courts vacated a condition
of release prohibiting the defendant from pos-
sessing “pornography.” The courts reasoned
that the category of “pornography” is too
broad to give a probationer adequate notice of
what he may and may not possess while on
probation. Guagliardo, 278 F.3d at 872; Loy,
237 F.3d at 264. Defendants aver that this
reasoning also applies to the category of “sex-
ually oriented or sexually stimulating
materials.”
Although we have not yet encountered this
kind of condition, our general approach to oth-
er vague conditions leads us to reject
defendants’ argument. In United States v.
Paul, 274 F.3d 155, 166-67 (5th Cir. 2001),
cert. denied, 122 S. Ct. 1571 (2002), we
affirmed a condition prohibiting defendant
from visiting locations “frequented by minors.”
We acknowledged some vagueness with the
condition but observed that “[t]his lack of
specificity is not necessarily fatal to the validity
of the restriction.” Id. at 166. We also stated
that “conditions of probation can be
writtenSSand must be readSSin a
commonsense way” because “it would be
impossible to list” every instance of prohibited
conduct, hence “[s]entencing courts must
inevitably use categorical terms to frame the
contours of supervised release conditions.” Id.
The category of “sexually oriented or sexu-
ally stimulating materials” admittedly is
somewhat vague, but Paul requires it be read
in a commonsense way. Such a construction
compels us to disagree with defendants’
suggestion that the condition could apply to
newspapers and magazines that contain
lingerie advertisements or even to the “Song of
Solomon.” Moreover, the prohibition on
patronizing sexually oriented establishments
refers, with sufficient precision, to places such
as strip clubs and adult theaters or bookstores.
We therefore read this second condition to
narrow the first condition to the kind of
sexually explicit materials available at such
places. Though a more definite condition
might be desirable, the district court has “wide
discretion in imposing terms and conditions of
supervised release,” Paul, 274 F.3d at 164,
and a commonsense reading of the special
condition satisfies the dictates of due process.
Furthermore, this question comes to us on
plain error review. Assuming that the court on
remand imposes the same sentence minus the
twenty-five-year consecutive sentence for the
invalid § 924(c)(1) conviction, defendants will
have a 489-month sentence. Thus, they will
not be released until they are at least nearly
sixty years old, and even then only if they are
model prisoners. (Of course, the district court
on remand might impose a longer sentence,
which would delay the release date further.)
Under these circumstances, it is hard to say
that the special condition affects their sub-
stantial rights or warrants the exercise of our
plain-error discretion. Once defendants are re-
leased from confinement, they can request a
more definite and precise condition in light of
forty more years’ development of the sexually
oriented business industry. 18 U.S.C.
§ 3583(e)(2).20
20 Because we review the special condition for
plain error, we reserve the question whether we
would uphold a similar special condition if the ob-
jection is preserved in the district court and re-
viewed de novo. United States v. Reyes-Maya,
305 F.3d 362, 366 n.2 (5th Cir. 2002) (noting that
(continued...)

-- 15 of 16 --

16
For the reasons stated, we AFFIRM the
convictions, VACATE the sentences, and
REMAND for resentencing on all counts re-
maining after one of the § 924(c)(1) counts is
dismissed.
(...continued)
the court may reach different conclusions on the
same question based on the standard of review).

-- 16 of 16 --