United States v. Pinkston ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 19, 2003
Charles R. Fulbruge III
Clerk
No. 02-50999
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ERIK CHRISTIAN PINKSTON
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
No. SA-01-CR-399-ALL-EP
Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN,*
District Judge.
PER CURIAM:**
After a jury trial, Defendant Erik Christian Pinkston was
convicted of bank robbery under 18 U.S.C. § 2113(a); armed bank
robbery under 18 U.S.C. § 2113(b) and (d); and using, carrying,
and brandishing a firearm in furtherance of a crime of violence
under 18 U.S.C. § 924(c)(1)(A)(ii). The district court sentenced
*
District Judge for the Northern District of Texas,
sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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Pinkston to the seven-year mandatory minimum for the third crime,
pursuant to 18 U.S.C. § 924(c)(1)(A)(ii). Pinkston appeals this
aspect of his sentence, claiming that the judge’s instructions to
the jury improperly conflated the meaning of “brandishing” a
firearm, which carries a seven-year penalty, with the meaning of
“using” a firearm, which carries only a five-year penalty under
the statute.
We review jury instructions under an abuse of discretion
standard, affording district courts “substantial latitude,” and
upholding instructions that, when viewed as a whole, accurately
reflect the law and issues in the case. United States v. Young,
282 F.3d 349, 353 (5th Cir. 2002). Here, the district court
instructed the jury that a conviction under § 924(c)(1)(A) is
proper when the defendant “used” a firearm in his crime:
[T]he government must prove that the defendant actively
employed the firearm in commission of [a crime]. . . .
“Active employment” may include brandishing,
displaying, referring to, bartering, striking with,
firing, or attempting to fire the firearm. Use is more
than mere possession of a firearm or having it
available during the crime of violence.
This instruction carefully tracks the Supreme Court’s language in
Bailey v. United States, 516 U.S. 137, 148 (1995); therefore, it
was not improper.
In addition, the district court submitted the question of
whether Pinkston “brandished” a firearm during this offense as a
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special issue to the jury,1 instructing:
The term “brandish” means, with respect to a firearm,
to display all or part of the firearm, or otherwise
make the presence of the firearm known to another
person in order to intimidate that person, regardless
of whether the firearm is directly visible to that
person.
This language mirrors the statutory definition for “brandish”
found in 18 U.S.C. § 924(c)(4).
Nevertheless, Pinkston claims that the latter instruction
was too broad, because it would encompass every situation in
which the defendant has “used” a firearm under § 924(c)(1)(A).
We disagree. A defendant who barters a gun while committing a
predicate crime has “used” a gun under § 924(c)(1)(A), see Smith
v. United States, 508 U.S. 223 (1993), yet he would not qualify
as “brandishing” his weapon under the definition in § 924(c)(4)
because he did not display the firearm “in order to intimidate”
another. Thus, it is not true, as Pinkston asserts, that the
term “brandish” has become mere surplusage by virtue of the
statutory definition Congress created. We therefore conclude
that the district court did not abuse its discretion with respect
to this jury instruction.
The defendant’s conviction and sentence are AFFIRMED.
1
Pinkston’s trial took place before the Supreme Court
announced, in Harris v. United States, that whether a defendant
“brandished” a firearm under § 924(c)(1)(A)(ii) is a sentencing
factor that may be decided by a judge, rather than a jury. 536
U.S. 545, 568-69 (2002).
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