United States v. Nebrum Pounds , 230 F.3d 1317 ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCT 20, 2000
________________________ THOMAS K. KAHN
CLERK
No. 99-15058
________________________
D. C. Docket No. 99-00209-CR-2-1-JOF
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
versus
NEBRUM POUNDS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 20, 2000)
Before COX, BLACK and FAY, Circuit Judges.
PER CURIAM:
Nebrum Pounds appeals his sentence for aiding and abetting in the robbery of
a fast food restaurant, in violation of 18 U.S.C. §§ 1951 and 2, and using and carrying
a firearm in the commission of a crime of violence, in violation of 18 U.S.C. §§ 924(c)
and 2. Pounds was sentenced to 33 months for violating 18 U.S.C. §§ 1951 and 2, and
to 120 months of imprisonment for violating 18 U.S.C. §§ 924(c) and 2. He argues
that the district court erred by applying 18 U.S.C. § 924(c)(1)(A)(iii) as a sentencing
enhancement rather than as an element of the offense that must be included in the
indictment and decided by a jury. For the reasons set forth below, we affirm the
district court’s sentence.
On March 17, 1999, Pounds and a co-defendant robbed a Checkers fast food
restaurant in Atlanta, Georgia. During the course of the robbery, Pounds’ co-
defendant fired at least three shots at a Checkers employee and an officer in pursuit.
On August 2, 1999, Pounds pled guilty to one count of interference with commerce
by robbery, in violation of 18 U.S.C. §§ 1951 and 2, and a second count for the use
of a firearm in the commission of a crime of violence, in violation of 18 U.S.C. §§
924(c) and 2.
Pounds was sentenced to 33 months imprisonment on the first count and 120
months on the second. On the second count, instead of sentencing Pounds under
subsection (i) of 18 U.S.C. § 924(c)(1)(A), which requires a sentence of not less than
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five years if a firearm is used in the commission of the offense, the district court
sentenced Pounds under 18 U.S.C. § 924(c)(1)(A)(iii), which requires a sentence of
not less than ten years if a firearm is discharged during the offense. The district court
concluded over Pounds’ objection that the discharge of a firearm under 18 U.S.C. §
924(c)(1)(A)(iii) was a sentence enhancement factor rather than an element of the
offense, and that the court could therefore sentence Pounds to ten years under that
provision even though the fact of the discharge of the firearm was not included in the
indictment, nor submitted to the jury. Pounds argues that discharging a firearm under
18 U.S.C. § 924(c)(1)(A)(iii) is a separate element of the offense which requires a jury
determination and must be included in the indictment to which the plea is made. We
disagree.
Section 924(c)(1)(A) provides:
Except to the extent that a greater minimum sentence is otherwise
provided by this subsection or by any other provision of law, any person
who, during and in relation to any crime of violence. . . uses or carries a
firearm. . . shall, in addition to the punishment provided for such crime
of violence. . .
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment
of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of imprisonment
of not less than 10 years.
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We believe that the language and structure of § 924(c)(1)(A) demonstrate that
Congress intended the fact of the discharge of a firearm during a crime of violence to
be a sentencing factor and not an element of the § 924(c)(1)(A) offense. “The first
clause of § 924(c)(1)(A), standing alone, defines the offense of using or carrying a
firearm during a crime of violence while subsections (i), (ii) and (iii) do ‘no more than
single out subsets of those persons [who carry or use firearms during crimes of
violence] for more severe punishment. . . .’” United States v. Carlson, 217 F.3d 986,
987 (8th Cir. 2000)(concluding that the language, structure, and legislative history
behind § 924(c)(1)(A) indicate Congress’ intent that brandishing a firearm under §
924(c)(1)(A)(ii) be considered a sentencing factor rather than an element of the
offense)(citations omitted). Accordingly, we hold that § 924(c)(1)(A) defines a single
criminal offense for using or carrying a firearm during a crime of violence, while
subsection (iii) describes the sentencing implications if a firearm is discharged during
the commission of the crime. Id. at 989.
This result is unchanged by the Supreme Court’s recent decision in Apprendi
v. New Jersey, --U.S.--, 120 S. Ct. 2348 (2000). Apprendi held that any fact, other
than a prior conviction, that increases the penalty for a crime beyond the prescribed
statutory maximum, must be submitted to a jury and proved beyond a reasonable
doubt. See id. at 2362-63. Nevertheless, Apprendi is inapplicable under the present
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facts because every conviction under § 924(c)(1)(A) carries with it a statutory
maximum sentence of life imprisonment, regardless of what subsection the defendant
is sentenced under. The discharge of a firearm does not increase the maximum
possible penalty of life under § 924(c)(1)(A); rather, it increases only the mandatory
minimum penalty. See Carlson, 217 F.3d at 989 (stating that the Supreme Court has
indicated that statutes which provide for increased mandatory minimum penalties
based on the presence of certain facts define one crime with sentencing enhancements,
rather than multiple distinct offenses)(citing McMillan v. Pennsylvania, 477 U.S. 79,
87-88, 106 S. Ct. 2411, 2417 (1986)).1
Because the discharge of a weapon under § 924(c)(1)(A)(iii) is a sentencing
factor rather than an element of the offense and because § 924(c)(1)(A)(iii) does not
increase the maximum statutory penalty for “using and carrying” a firearm in relation
to a crime of violence, we conclude that the sentence imposed on Pounds by the
district court is correct.
AFFIRMED
1
The Supreme Court expressly stated in Apprendi that it did not overrule its prior
decision in McMillan, but instead limited McMillan’s holding to cases that did not involve the
imposition of sentences more severe than the statutory maximum for the offense established by
the jury’s verdict. See Apprendi, 120 S. Ct. at 2361, n. 13.
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