United States v. Deon Evans ( 2023 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1195
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEON EVANS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:16-cr-20067 — Colin S. Bruce, Judge.
____________________
ARGUED JANUARY 11, 2023 — DECIDED JULY 24, 2023
____________________
Before WOOD, BRENNAN, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. Deon Evans went to trial on federal
drug and gun charges, lost, and received a sentence of about
66 years—the product of his having a prior conviction under
18 U.S.C. § 924(c) and then being convicted of two additional
§ 924(c) charges in this case. Before us now is Evans’s appeal
of the two § 924(c) convictions and related mandatory consec-
utive sentences of 25 years on each conviction. He also chal-
lenges the district court’s denial of his motion for a new trial.
2 No. 22-1195
Evans is right that the district court committed error in al-
lowing the two § 924(c) convictions to stand. The evidence be-
fore the jury showed that Evans made a single choice to pos-
sess a firearm over a continuous 30-minute span that included
a sale of heroin to a confidential informant at a gas station and
the police later finding methamphetamine and a gun in his
car. No doubt the facts support one § 924(c) conviction, but
they do not support two.
A second aspect of this case greatly concerns us—the dis-
trict court’s denial of Evans’s motion for a new trial without
an evidentiary hearing. Evans rooted his request in the con-
tention that his trial counsel rendered ineffective assistance as
a result of a heroin addiction, which affected counsel through-
out his representation of Evans in the district court. The con-
tention did not come out of thin air. To the contrary, Evans’s
trial counsel overdosed on heroin less than three weeks after
trial, and his counsel’s girlfriend told the police that he had
suffered from heroin and alcohol addiction for many years.
The district court rejected Evans’s request for a new trial, con-
cluding that defense counsel performed well during trial and
that the effects of his addiction did not need further explora-
tion in a hearing.
We cannot agree. Evans faced serious criminal charges
with serious sentencing consequences. Not only had his ap-
pointed counsel never tried a federal criminal case, he also—
according to an uncontested police report—was addicted to
and using heroin before, during, and after trial. It may be that
the district court, upon examining the facts and circumstances
surrounding trial counsel’s addiction, reaches the same con-
clusion as it did before. But way too much is at stake to forgo
No. 22-1195 3
that modest step—an evidentiary hearing—given the gravity
of everything we know on the present record.
I
A
In the summer of 2016, Evans twice sold heroin to a confi-
dential source in Gilman, Illinois. On July 29 he sold 50 grams
for $4,500 at a gas station. Then on August 24 he returned to
the gas station and sold 125 grams for $11,250 to the same in-
formant, this time under surveillance. Law enforcement
stopped Evans on the highway 30 minutes later. The officers
found cash from the controlled purchase and containers of
methamphetamine in a concealed compartment (a “trap”) un-
der the rear driver-side seat. They also found two handguns
and extra ammunition in a different trap under the rear pas-
senger-side seat.
A grand jury indicted Evans on four counts: two drug dis-
tribution charges under 21 U.S.C. § 841 and two firearm
charges—one under 18 U.S.C. § 924(c) and a second under 18
U.S.C. § 922(g)(1). Following conflicts with Evans’s first two
lawyers, the district court appointed Steven Sarm to represent
Evans on October 15, 2018. Sarm remained Evans’s lawyer
through trial.
The case was in flux at the time Sarm joined. Earlier in the
proceedings Evans had pleaded guilty to the two § 841 drug
distribution counts and to the § 924(c) firearm charge in ex-
change for the government dropping the § 922(g) felon-in-
possession charge. The Probation Office recommended a total
sentence of 35 years: 10 for the § 841 offenses and, because Ev-
ans had a prior conviction under § 924(c), a mandatory con-
secutive 25 years for the § 924(c) violation. While still
4 No. 22-1195
represented by his former counsel, Evans moved to withdraw
the guilty plea to the § 924(c) charge. That motion remained
pending when Sarm took over as counsel, and the district
court afforded Sarm time to get up to speed on the case.
A few months later, in January 2019, Sarm confirmed that
Evans wished to withdraw the § 924(c) plea and urged the dis-
trict court to grant that motion. The district court did so over
the government’s objection. The government, as was its right,
then returned to the grand jury and received a superseding
indictment lodging additional charges—another § 841(a)
drug charge and another § 924(c) count. The new charges
arose out of the recovery of methamphetamine and firearms
from Evans’s car during the traffic stop on August 24, 2016.
The addition of the second § 924(c) charge was serious busi-
ness, exposing Evans to a second mandatory sentence of at
least 25 years that, upon conviction, would have to run con-
secutive to any sentence imposed on the first § 924(c) charge.
See 18 U.S.C. § 924(c)(1)(C)–(D). In federal criminal law par-
lance, Evans faced stacked § 924(c) charges.
Advised by Sarm, Evans proceeded to trial in January 2020
on all open counts—two § 841 drug counts and two § 924(c)
counts. The government called 11 witnesses, including the
confidential informant, the federal agents who monitored Ev-
ans’s sale of heroin to the informant, and forensics experts
who tested the firearms and drugs for Evans’s DNA. Sarm
only subjected 4 of the 11 to meaningful cross-examination
and rested without presenting any evidence or calling any de-
fense witnesses. The jury returned a guilty verdict on all
counts.
The district court later sentenced Evans to 65 years and 8
months. Fifty of those years came from the two § 924(c)
No. 22-1195 5
convictions, each of which brought with it mandatory mini-
mum and consecutive sentences of 25 years because Evans
had a prior qualifying § 924(c) conviction from 2007. See 18
U.S.C. § 924(c)(1)(C)(i). In imposing these consecutive terms,
the district court rejected Evans’s objection that the trial evi-
dence, which showed Evans sold heroin to an informant just
before the police pulled him over and found two guns and
methamphetamine in his car, did not support convictions for
two § 924(c) offenses. Evans argued that the firearm posses-
sion was part of the same continuous incident—the drug sale
at the gas station followed in short order by the police stop—
and not part of two distinct incidents. The remainder of Ev-
ans’s sentence came from his convictions on the three drug
counts under § 841.
B
Nineteen days after the trial and before Evans’s sentenc-
ing, Champaign police responded to a 911 call from Steven
Sarm’s girlfriend reporting that Sarm had overdosed on her-
oin and needed emergency medical assistance. Sarm survived
the overdose. The police report from the incident included a
statement from Sarm’s girlfriend, who explained that Sarm
had gone to an Alcoholics Anonymous meeting earlier that
evening and, in all likelihood, bought heroin from a particular
drug dealer. She further informed the police that Sarm suf-
fered from depression and had had an alcohol and substance
abuse problem for at least six years.
Upon learning of this development, the district court ap-
pointed new counsel, Charles Schierer, to represent Evans.
Schierer promptly filed a motion for a new trial, arguing that
Sarm’s longstanding heroin addiction explained his deficient
performance at trial—performance so lacking that it
6 No. 22-1195
amounted to a violation of Evans’s Sixth Amendment right to
the effective assistance of counsel. Schierer accompanied his
motion with an alternative request for an evidentiary hearing,
explaining that examining Sarm in court under oath “would
be helpful” to identifying the “specific acts and omissions”
that resulted from the heroin addiction—evidence essential to
Evans’s ineffective assistance of counsel claim. The govern-
ment opposed both requests, contending in part that it did not
believe Sarm was “impaired at any relevant time” while rep-
resenting Evans.
The district court denied the new trial motion without a
hearing, clearing the way for Evans’s sentencing. The court
saw “no evidence in the record that Sarm was impaired or un-
der the influence of any illegal narcotic, or any drug, during
or before Defendant’s trial.”
Evans now appeals.
II
A
We begin with Evans’s challenge to his second § 924(c)
conviction and the accompanying sentence. Recall that the
two stacked § 924(c) charges arose from what occurred on Au-
gust 24, 2016. The trial evidence showed that Evans first sold
heroin to the confidential informant just after noon at a gas
station in Gilman, Illinois. Federal agents then conducted aer-
ial surveillance of Evans as he left the gas station and drove
through Gilman before heading northbound on Interstate 57.
Thirty minutes after the controlled purchase, state police
stopped Evans on the highway and found methamphetamine
and two guns in his car. At trial the jury convicted Evans of
two § 924(c) offenses—based on evidence showing that Evans
No. 22-1195 7
had a firearm in his car both at the time of the heroin sale at
the gas station and 30 minutes later when the police pulled
him over and found a gun near the methamphetamine.
In sentencing Evans to consecutive 25-year sentences on
the two § 924(c) convictions, the district court focused not so
much on whether the government proved multiple, separate
instances of gun possession but rather on Evans’s two distinct
drug offenses. The trial evidence left no doubt that the gov-
ernment could properly charge Evans for both the heroin sale
at the gas station and, separately, for the distribution quantity
of methamphetamine found in his car. The district court saw
no reason that the two distinct drug offenses could not bring
with them two accompanying § 924(c) convictions.
Evans now renews his challenge to the two § 924(c) con-
victions and urges us to reject this predicate-based approach
to § 924(c) stacking.
B
The proper starting point is the text of § 924(c)(1)(A),
which provides:
[A]ny person who, during and in relation to any
crime of violence or drug trafficking crime … ,
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 violence or drug trafficking crime be
sentenced to a term of imprisonment of not less
than 5 years.
Companion subsections impose enhanced penalties for repeat
offenders like Evans:
8 No. 22-1195
In the case of a violation of this subsection that
occurs after a prior conviction under this sub-
section has become final, the person shall be
sentenced to a term of imprisonment of not less
than 25 years.
…
[N]o term of imprisonment imposed on a per-
son under this subsection shall run concurrently
with any other term of imprisonment imposed
on the person, including any term of imprison-
ment imposed for the crime of violence or drug
trafficking crime during which the firearm was
used, carried, or possessed.
Id. § 924(c)(1)(C)–(D).
Evans’s sentencing challenge requires us to determine the
proper units of prosecution under the statute—or, put differ-
ently, the “‘minimum amount of activity for which criminal
liability attaches’ for each charge” under § 924(c). United
States v. Rentz, 777 F.3d 1105, 1108 (10th Cir. 2015) (en banc)
(quoting United States v. Cureton, 739 F.3d 1032, 1041 (7th Cir.
2014)). We recognized but expressly reserved this question
nearly a decade ago. See Cureton, 739 F.3d at 1044 n.2. At bot-
tom, the question we ask ourselves is whether the govern-
ment can properly bring a new § 924(c) charge for each pred-
icate offense that the defendant commits—even if the defend-
ant makes only a single choice to use or possess a firearm in
relation to those offenses. Or, as Evans urges, does the gov-
ernment also need to prove for each § 924(c) charge that the
defendant chose anew to use or possess a firearm?
No. 22-1195 9
The question presented is one of statutory interpretation,
and both parties’ positions find some support in the language
Congress employed in § 924(c)(1)(A). At the most basic level,
Evans is right to emphasize that § 924(c) is a firearm offense,
not a controlled substance offense. The statute, by its terms,
prohibits the use, carry, and possession of a firearm in partic-
ular circumstances—when the use or carry is during and in
relation to qualifying predicate offenses or, alternatively,
when the possession furthers those same predicate offenses.
In each proscribed circumstance, it is the use, carry, or posses-
sion of the firearm—not the commission of any qualifying
predicate crime of violence or drug trafficking crime—that vi-
olates § 924(c)(1)(A). From this textual standpoint, it is hard to
disagree with Evans.
But the government is right that Congress used condi-
tional language in § 924(c)(1)(A): the prohibited use, carry, or
possession of a firearm must occur with the prescribed rela-
tionship to a crime of violence or a drug trafficking crime
(here, drug possession and distribution). It therefore makes
perfect sense, the government’s position goes, to charge a de-
fendant with multiple counts under § 924(c) when the defend-
ant commits multiple predicate offenses and chooses to pos-
sess, use, or carry a firearm at least once, so long as his choice
properly relates to each of the predicate offenses.
Important guidance comes from two cases we decided in
2014. In United States v. Cureton, Thomas Cureton possessed a
single gun while he “simultaneously committed” two predi-
cate crimes of violence (interstate communication of a ransom
request and attempted extortion) arising out of the same tele-
phone call. 739 F.3d at 1043. We reversed one of his § 924(c)
convictions, reasoning that Cureton made “only one choice to
10 No. 22-1195
use a gun” in connection with these predicate offenses. Id. at
1043–44. We saw the statutory language as compelling this
outcome because § 924(c) “imposes its punishment based on
the use of a firearm (and provides for increased punishment
based on how the firearm is used)—not on the nature of the
predicate offense.” Id. at 1043. The government’s predicate-
based interpretation, conversely, ran afoul of the statute be-
cause it amounted to “punish[ing] only the underlying pred-
icate offenses themselves,” not “the choice to use or possess a
firearm in committing a predicate offense.” Id. at 1044–45.
We adhered to much the same reasoning in United States
v. Cejas, 761 F.3d 717 (7th Cir. 2014). Constantino Cejas com-
mitted two predicate drug offenses six days apart in February
2011. See id. at 731. We affirmed two corresponding § 924(c)
convictions because of the passage of time between the com-
mission of the offenses and related predicate drug-distribu-
tion offenses: the six days showed there was a “meaningful
difference” dividing the defendant’s two distinct choices to
possess a gun in furtherance of drug trafficking charges. Id.
We emphasized that the facts showed that the government
had twice proved (on day one and again on day six) both es-
sential elements of a § 924(c) charge—the choice to possess a
firearm and a predicate offense.
Cureton and Cejas emphasize that the government can
stack § 924(c) charges only when the defendant makes more
than one decision to use a firearm. Looking outside our case
law, we see that our fellow circuits have adopted much the
same interpretation of § 924(c). Their decisions consistently
emphasize that the defendant’s choice to possess a firearm is
key. See, e.g., United States v. Finley, 245 F.3d 199, 207 (2d Cir.
2001); United States v. Phipps, 319 F.3d 177, 187 (5th Cir. 2003);
No. 22-1195 11
United States v. Jackson, 918 F.3d 467, 492 (6th Cir. 2019); Rentz,
777 F.3d at 1111; United States v. Anderson, 59 F.3d 1323, 1328
(D.C. Cir. 1995) (en banc).
Consider, for example, the Sixth Circuit’s framing in Jack-
son. The court focused on the verbs capturing the conduct that
Congress criminalized in § 924(c)(1)(A), explaining that
“[w]hether a criminal episode contains more than one unique
and independent use, carry, or possession depends at least in
part on whether the defendant made more than one choice to
use, carry, or possess a firearm.” 918 F.3d at 490 (quoting
United States v. Vichitvongsa, 819 F.3d 260, 270 (6th Cir. 2016)).
Put simply, the Sixth Circuit concluded that § 924(c) criminal-
izes a choice to employ a firearm, not the commission of pred-
icate offenses. See id. at 492–93.
The Tenth Circuit adhered to a similar approach in Rentz,
rooting a meaningful portion of its reasoning in a broader ob-
servation regarding the full statutory context of § 924(c). Writ-
ing for the en banc Tenth Circuit, then-Judge Gorsuch under-
scored Congress’s decision to impose steep sentencing conse-
quences on second and subsequent convictions under
§ 924(c):
This massive sentencing differential suggests a
legislative judgment that second violations are
something different in kind from initial viola-
tions. Such a difference is obvious enough if a
second conviction requires the defendant to
make a second choice to use, carry, or possess a
gun to further a crime—say, by firing a gun at
different people on different occasions. In cases
like that, the defendant hasn’t made one inten-
tionally bad decision but two. But if a second
12 No. 22-1195
conviction doesn’t require a second blamewor-
thy choice to use, carry, or possess a firearm in
aid of a predicate act, the logic behind the leap
in punishment becomes less apparent.
Rentz, 777 F.3d at 1111. To the extent that Congress wishes to
impose such penalties based on the commission of each pred-
icate offense—rather than the choice to use, carry, or possess
a firearm—it can amend the statute to clarify that intent. But
focusing on the defendant’s choice aligns the offense conduct
with Congress’s sentencing scheme in § 924. The Tenth Cir-
cuit therefore held that a separate use, carry, or possession of
a firearm is necessary for each count of conviction under
§ 924(c). See id. at 1115.
In the end, then, we follow the same course and conclude
that stacking § 924(c) charges is permissible only if the de-
fendant has decided more than once to possess, use, or carry
a firearm in the manner proscribed by Congress.
C
The trial evidence permitted one—but not two—§ 924(c)
convictions in Evans’s case. Return to the events on August
24, 2016. Just 30 minutes separated Evans’s controlled sale of
heroin at the gas station from the subsequent traffic stop
where law enforcement found the methamphetamine and
guns in his car. Important, too, is the fact that the government
subjected Evans to aerial surveillance for the entirety of those
30 minutes before pulling him over. The surveillance revealed
nothing suggesting Evans stopped to pick up a gun. See
United States v. Jordan, 952 F.3d 160, 171 (4th Cir. 2020) (affirm-
ing stacked § 924(c) convictions when “the jury was presented
No. 22-1195 13
with ample evidence of different uses of different guns, all in
furtherance of the predicate drug-trafficking offenses”).
On this evidence, and by convicting Evans on both § 924(c)
charges, the jury necessarily credited the government’s con-
tention that the guns found in the car during the traffic stop
were also present in the vehicle 30 minutes earlier at the gas
station. All these considerations show that Evans made only
one choice to possess a firearm in furtherance of the predicate
drug offenses, making this case more like Cureton than Cejas.
His possession of a firearm was itself a continuing choice
across both predicate offenses, so he only violated § 924(c)
once.
That leaves the proper remedy. “[W]hen part of a sentence
is vacated the entire sentencing package becomes ‘unbun-
dled’ and the judge is entitled to resentence a defendant on all
counts.” United States v. Smith, 103 F.3d 531, 533 (7th Cir.
1996); see also Cureton, 739 F.3d at 1045 (vacating the § 924(c)
conviction and remanding for new sentencing). Rather than
simply shaving 25 years off Evans’s term of imprisonment,
the district court should consider Evans’s sentence anew.
III
A
We come now to Evans’s challenge to the denial of his mo-
tion for a new trial. The fact pattern is alarming. Evans went
to trial on very serious charges, did little at trial to test the
government’s case, and received convictions across the
board—only to learn three weeks later that his counsel, Steven
Sarm, overdosed on heroin and, according to a police report,
had been suffering from a substance abuse addiction for the
last six years. Anyone reading this opinion will ask the same
14 No. 22-1195
question: how did Sarm’s addiction affect his representation
of Evans?
The district court sought to answer the question as any
court would, by reviewing the trial transcript in detail, as-
sessing Sarm’s performance at every step, and trying to recall
whether there were any indications of impairment. The dis-
trict court found nothing warranting a new trial: Sarm gave
an opening statement, cross examined those witnesses that it
made sense to cross examine, delivered a closing argument,
and, above all else, appeared attentive and engaged all
throughout trial. The district court found it of no moment that
Sarm did not present any evidence or call any witnesses, as
this was an open-and-shut case for the government.
Although Sarm’s performance strikes us as more lacklus-
ter than the district court found, we agree that his trial perfor-
mance by itself is not a basis for reversal. See Strickland v.
Washington, 466 U.S. 668, 688 (1984). In presiding over the
trial, the district judge had a front row seat to everything that
transpired and was well-positioned to assess Sarm’s trial per-
formance. Indeed, the district judge even recalled compli-
menting Sarm after the jury returned its verdict.
If we limited ourselves to those findings, we would have
a hard time second-guessing the district court’s observations.
And if this were an ordinary case we would stop there. But
Sarm’s heroin overdose and the accompanying police report
flagging years of substance abuse make this case anything but
ordinary. That key report calls into question the entire span
of Sarm’s representation of Evans.
B
No. 22-1195 15
Our much graver concern is what is missing from the rec-
ord prior to trial. Recall the procedural history generally—
and specifically when Sarm joined the case as appointed
counsel. He immediately assisted Evans with a pending mo-
tion to withdraw his guilty plea on the § 924(c) charge, which
the district court granted. The government responded by re-
turning to the grand jury and lodging a superseding indict-
ment with two new offenses, including a second § 924(c)
count. The result of Evans’s plea withdrawal was dire: he con-
sequently faced charges risking multiple consecutive 25-year
minimum sentences. Further raising the stakes was the addi-
tional pressure of another § 841 drug charge, premised on the
methamphetamine in the car. Now, instead of a likely sen-
tence of 35 years or so, Evans risked the prospect of almost
twice that.
Having taken our own detailed look at the government’s
evidence, it is difficult to see any viable trial defense Evans
might have had. He sold drugs to informants in transactions
monitored by law enforcement and captured on video. And
when the police pulled over Evans on Interstate 57 they found
two guns, extra ammunition, and distribution quantities of
methamphetamine in his car. Plain and simple, the govern-
ment had ironclad proof that Evans was an armed drug
dealer. In light of this evidence, we have a hard time under-
standing the basis on which Sarm advised Evans to persist in
his effort to withdraw his initial guilty plea and proceed to
trial, especially when anyone with federal criminal law expe-
rience could predict with high confidence that the govern-
ment would react to the withdrawal of the initial guilty plea
by returning to the grand jury and adding a second § 924(c)
charge. That development would increase Evans’s sentencing
exposure on the § 924(c) charges alone from a minimum of 25
16 No. 22-1195
years to at least 50 years. That is exactly what transpired, and
it happened in a case where Evans had next to no chance of
prevailing at trial, even taking into account his successful ar-
gument on appeal that the government could not stack
§ 924(c) charges.
To be sure, Evans had every right to choose to go to trial
and take his chances, however slim they may have been. Our
point is different. We worry that Evans made that choice ad-
vised by an attorney addicted to heroin with little knowledge
of federal criminal law. Perhaps not. It may be that Sarm did
convey sound advice, and Evans proceeded to trial with his
eyes wide open.
Still, it is this decision-making, and the role Sarm poten-
tially played in facilitating it, that so concerns us. See Lafler v.
Cooper, 566 U.S. 156, 162 (2012) (“Defendants have a Sixth
Amendment right to counsel, a right that extends to the plea-
bargaining process.”). This same concern is surely what
prompted Evans’s new counsel to urge the district court to
hold an evidentiary hearing. Sarm’s substance abuse issues
could very well have affected the advice he gave Evans from
the outset, before Evans withdrew his guilty plea and pro-
ceeded to trial. Layered on top of this ill-conceived strategy is
the fact that this was Sarm’s first ever federal criminal case. It
is anything but clear on the record before us that Sarm fully
appreciated, or even attempted to learn about, the major sen-
tencing ramifications of a § 924(c) charge given Evans’s crim-
inal history. A diligent lawyer would have confirmed on the
record that his client fully understood the risk of losing at trial
on stacked § 924(c) charges. Yet that confirmation is com-
pletely missing from the record.
No. 22-1195 17
Mindful of the gravity and totality of the circumstances of
a defendant proceeding to trial on stacked § 924(c) charges in
a case where defense counsel suffered from a heroin addiction
and the government had overwhelming evidence, the district
court should have held an evidentiary hearing before denying
Evans’s motion for a new trial. It is imperative that the district
court supplement the record to determine the effects, if any,
that Sarm’s heroin addiction might have had during the en-
tirety of his representation of Evans.
The police report, which the underlying decision does not
mention, bolsters our concerns. See James v. Eli, 889 F.3d 320,
328 (7th Cir. 2018) (explaining a district court can “abuse its
discretion ‘when it overlooks essential evidence’” (quoting
Jardien v. Winston Network, Inc., 888 F.2d 1151, 1159 (7th Cir.
1989))). This report suggests that heroin was just one of sev-
eral addiction issues that could have hampered Sarm’s deci-
sion-making in the months and years preceding trial. And the
report further indicates that substance abuse likely plagued
Sarm across a timespan when no single judge could have pos-
sibly observed the full ramifications—the case flipped from
Judge Bruce to Judge Darrow in August 2018 before returning
back to Judge Bruce in September 2019.
We do not take comfort in Sarm’s cursory affidavit either,
where he stated he “was not impaired at any relevant time”
while representing Evans. This affidavit—submitted 18
months after the overdose and while Sarm purportedly con-
tinued to practice law—serves an obvious self-interest and
has “not been tested through the adversarial process at any
kind of hearing.” Campbell v. Reardon, 780 F.3d 752, 772 (7th
Cir. 2015).
18 No. 22-1195
Further amplifying our concern is the reality that this is
Evans’s only chance to litigate this Sixth Amendment chal-
lenge to Sarm’s performance in the district court. Time and
again we have emphasized that, in almost all instances, direct
appeals of ineffective assistance of counsel claims are ill-ad-
vised. See, e.g., United States v. Onamuti, 983 F.3d 892, 895 (7th
Cir. 2020); United States v. Cates, 950 F.3d 453, 456–57 (7th Cir.
2020). That is so because our review is limited to the factual
record developed in the district court below, which rarely in-
cludes specifics around counsel’s representation. See, e.g.,
United States v. McClinton, 23 F.4th 732, 737 (7th Cir. 2022). But
exceptions to this norm exist—and Evans’s case is one of those
few. Indeed, now that Evans has squarely presented this issue
before us, leaving his ineffective assistance of counsel chal-
lenge to collateral review would doom it because “once he
raises the claim and loses, he can never raise it again.” Id. De-
fendants get only one bite at the apple. The most prudent
course of action, therefore, is to remand the case for an evi-
dentiary hearing.
At bottom, the record is incomplete. Given the seriousness
of what transpired, Evans’s conviction should only be af-
firmed on a record where we can be much more certain of Ste-
ven Sarm’s condition and preparedness before and during
trial. An evidentiary hearing is a small step that will help re-
solve the issue, in circumstances that could hardly be more
consequential for Evans—or, for that matter, the public’s con-
fidence in the administration of criminal justice.
IV
No. 22-1195 19
In the end, we VACATE the second of Evans’s two § 924(c)
convictions as well as his sentence. We also VACATE the dis-
trict court’s decision on Evans’s motion for a new trial. We
REMAND for proceedings consistent with this opinion.
20 No. 22-1195
BRENNAN, Circuit Judge, dissenting. I see this case differ-
ently than my colleagues on both issues presented in this ap-
peal.
On the first issue, the relevant question in my view is
whether the exact same conduct underlies each of Evans’s two
predicate acts. Because he possessed firearms in furtherance
of two separate and distinct offenses, the evidence supports
two convictions under 18 U.S.C. § 924(c)(1)(A).
On the second issue, I do not believe the district court
abused its discretion by not holding an evidentiary hearing
before denying Evans’s motion for a new trial. Although the
report of attorney Sarm’s overdose after trial causes concern,
no evidence suggests he was impaired at any point during his
representation of Evans, or even if he was, that he provided
ineffective assistance as a result.
I. Two § 924(c) Convictions
Section 924(c)(1)(A) proscribes the use or carry of a firearm
“during and in relation to any crime of violence or drug traf-
ficking crime” or the possession of a firearm “in furtherance
of any such crime.” 18 U.S.C. § 924(c)(1)(A). This appeal does
not require us to determine the proper unit of prosecution for
§ 924(c). In United States v. Cureton, this court decided that the
unit “is the use, carriage, or possession of a firearm during
and in relation to a predicate offense.” 739 F.3d 1032, 1043 (7th
Cir. 2014). We recognized that the “statute does not punish
the mere use, carriage, or possession of a firearm … . Nor is it
enough to look simply at the predicate offense.” Id. Rather,
the statute punishes “the choice to use or possess a firearm in
committing a predicate offense, in addition to the punishment
otherwise imposed for the predicate crimes.” Id. at 1045.
No. 22-1195 21
Given § 924(c)’s unit of prosecution, this court concluded
in Cureton that the single use of a firearm which results in
multiple, simultaneously committed predicate offenses does
not support multiple § 924(c) charges. Id. at 1043–44. The de-
fendant in Cureton held a gun to his roommate’s head and de-
manded that she call her relatives for cash—simultaneously
committing the crimes of attempted extortion and the inter-
state communication of a ransom request. Id. at 1034. Because
the defendant “used a firearm once, in the simultaneous com-
mission of two predicate offenses” premised on the exact
same conduct, only one § 924(c) conviction could stand. Id. at
1043. In so holding, we did not disturb our court’s prior deci-
sions that “distinctly committed crimes, even those commit-
ted on the same day, can support multiple § 924(c) violations
and the consecutive sentences that result.” Id. at 1041 (citing
United States v. Paladino, 401 F.3d 471, 478–79 (7th Cir. 2005)).
Other circuits agree that § 924(c) does not authorize mul-
tiple convictions when a single firearm use results in simulta-
neously committed predicate offenses. See, e.g., United States
v. Phipps, 319 F.3d 177, 186 (5th Cir. 2003) (upholding one
§ 924(c) conviction when defendant brandished a weapon
once while simultaneously committing carjacking and kid-
napping); United States v. Johnson, 25 F.3d 1335, 1336–38 (6th
Cir. 1994) (en banc) (upholding one § 924(c) conviction when
defendant possessed a firearm while simultaneously pos-
sessing different controlled substances); United States v. Vi-
chitvongsa, 819 F.3d 260, 266 (6th Cir. 2016) (upholding one
§ 924(c) conviction when defendant brandished a firearm to
simultaneously further two different conspiracies); United
States v. Jackson, 918 F.3d 467, 492 (6th. Cir. 2019) (upholding
one § 924(c) conviction when defendant brandished a weapon
once while simultaneously committing two carjackings);
22 No. 22-1195
United States v. Rentz, 777 F.3d 1105, 1115 (10th Cir. 2015) (en
banc) (upholding one § 924(c) conviction when defendant
fired a single shot that injured one victim and killed another);
United States v. Wilson, 160 F.3d 732, 749–50 (D.C. Cir. 1998)
(upholding one § 924(c) conviction when defendant shot a
witness, simultaneously committing the crimes of first-degree
murder and killing a witness to prevent testimony).
These other courts address the single use of a firearm, but
they do not speak to multiple predicate offenses committed
during the continuous possession of a firearm. See, e.g., Phipps,
319 F.3d at 186 n.7. (“[W]e speak only of use, not of carriage
or possession.”); Jackson, 918 F.3d at 492 (quoting Vichitvongsa,
819 F.3d at 266) (“[The defendant]’s two § 924(c) convictions
were premised on his use of ‘the same firearm one time.’’’);
Rentz, 777 F.3d at 1107 (“The parties before us agree that [the
defendant] ‘used’ a gun only once.”); Wilson, 160 F.3d at 749(“It is undisputed that [the defendant] used his firearm only
one time.”). Only the Sixth Circuit’s decision in Johnson ad-
dressed firearm possession. 25 F.3d at 1338. Because that de-
fendant possessed a firearm during the simultaneous posses-
sion of different controlled substances, the court concluded
the defendant violated § 924(c) once. Id.
I see the question here as whether § 924(c) authorizes two
convictions when a defendant, like Evans, continually pos-
sesses two firearms in furtherance of two distinct predicate
acts. In vacating Evans’s second § 924(c) conviction, the ma-
jority opinion relies on the Tenth Circuit’s decision in Rentz,
which held that each § 924(c) charge “requires an independ-
ent use, carry, or possession.” 777 F.3d at 1115. But Rentz left
unanswered the precise issue of “what exactly suffices to con-
stitute a unique and independent use, carry, or possession
No. 22-1195 23
sufficient to support a second or successive” § 924(c) charge.
Id. In particular, the Tenth Circuit did not address how
§ 924(c) applies when a defendant “continually possesses a
firearm or firearms while committing multiple violent or drug
trafficking offenses.” Id. at 1130 n.14 (Matheson, J. concur-
ring). Similarly, the Sixth Circuit in Jackson declined to speak
to “situations where multiple § 924(c) convictions are predi-
cated on separate offenses that occurred as part of ‘the same
criminal episode.’” 918 F.3d at 492 (quoting Vichitvongsa, 819
F.3d at 269–70). So, I do not see Rentz or Jackson controlling
this case.
In Cureton, we expressly reserved the question of whether
possession of a firearm during “predicate offenses that were
not simultaneously committed” but “nearly so” could support
multiple § 924(c) charges. 739 F.3d at 1044 n.2 (emphasis
added). The Second Circuit, in United States v. Finley, vacated
a § 924(c) conviction when the defendant committed two
predicate offenses three minutes apart while in continuous
possession of a firearm. 245 F.3d 199, 208 (2d Cir. 2001). The
defendant in Finley sold cocaine to an undercover officer. Id.
at 202. Three minutes later, several officers entered the de-
fendant’s home, finding additional cocaine and a sawed-off
shotgun. Id. The Second Circuit viewed the sale and posses-
sion of cocaine as “simultaneous or nearly so” in holding that
such conduct supported only one § 924(c) conviction. Id. at
207. I agree with the Fifth Circuit’s conclusion in Phipps, 319
F.3d at 188 n.11, that “the predicate offenses in Finley,” even if
separated by three minutes, “were not simultaneous.”
Shortly after Cureton, this court held in United States v.
Cejas that a defendant who continuously possessed the same
gun during two drug deals taking place six days apart could
24 No. 22-1195
be convicted of two § 924(c) violations. 761 F.3d 717, 731 (7th
Cir. 2014). Cejas argued that he violated § 924(c) only once
“because his possession of the gun was continuous and unin-
terrupted.” Id. at 730. He “never relinquished and required
possession” of his gun prior to the second drug deal. Id. This
court rejected the defendant’s argument and upheld both
§ 924(c) convictions because the “two drug offenses [were]
based on separate and distinct conduct.” Id. at 731. It was “ir-
relevant that the same gun was used in each drug transaction
or that [the defendant] had continuous possession of it; all
that matter[ed was] that a firearm was involved in furthering
each distinct drug offense.” Id. 1
By any metric—time, location, and type of drug—this case
involved the commission of two distinct predicate crimes.
1The majority opinion characterizes Cejas as involving “two distinct
choices to possess a gun in furtherance of drug trafficking charges.” Rentz
also described Cejas as “upholding two convictions for two acts of posses-
sion separated by nearly a week.” 777 F.3d at 1115.
I disagree with this reading of Cejas. There, the defendant had “con-
tinuous possession” of a gun during two distinct drug offenses. Cejas, 761
F.3d at 731. He specifically did not choose to relinquish and then reacquire
his weapon. Id. at 730. To the extent Cejas made a “choice,” it was to fur-
ther two drug offenses by carrying a weapon, not necessarily a choice to
possess the weapon two separate times.
Even if the focus is on “choice,” it is unclear whether the relevant
choice is to possess a gun or to possess a gun in furtherance of a drug traffick-
ing crime. Based on the unit of prosecution—defined as “each predicate
offense in which a firearm is carried, used, or possessed with the intent to
further the drug crime,” Id. at 731 (citing Cureton, 739 F.3d at 1041–43)—I
view it as the latter. Here, the evidence supports the conclusion that Evans
made two choices to further two distinct drug trafficking crimes with a
weapon.
No. 22-1195 25
Evans placed heroin, methamphetamine, and two firearms in
two concealed compartments in his vehicle. Before the heroin
sale, his possession of the guns could be said to have simulta-
neously furthered the possession of both drugs. Evans went
on to commit two distinct predicate offenses—he engaged in
different conduct, at different times, in different places. First,
Evans possessed a firearm in his vehicle during the heroin sale
at the gas station. Once he sold the heroin, the first predicate
offense was completed. Evans then decided to keep the fire-
arms to further his possession with intent to distribute meth-
amphetamine. He left the gas station and drove through the
town of Gilman before heading northbound on Interstate 57.
Thirty minutes later, police stopped Evans’s vehicle on Inter-
state 57 north of Ashkum, Illinois, about 10 miles away from
Gilman. After searching his vehicle, police found the hidden
methamphetamine and firearms.
Although 30 minutes between predicate acts is closer in
time than the six days at issue in Cejas, Evans’s conduct did
not occur “simultaneously” as in Cureton or any of the circuit
precedents cited above. And the “exact same conduct,” Cu-
reton, 739 F.3d at 1035, did not form the basis of both predicate
offenses. One predicate offense involved the distribution of
heroin, while the second predicate offense involved the pos-
session with intent to distribute methamphetamine. These of-
fenses also took place in different locations, one at a gas sta-
tion and the other on Interstate 57, approximately 10 miles
away. Cejas supports the conclusion that the continuous pos-
session of a firearm during multiple drug trafficking crimes
can form the basis of multiple § 924(c) convictions. As in Cejas,
Evans’s “two drug offenses [were] based on separate and dis-
tinct conduct.” 761 F.3d at 731. None of the cases the majority
26 No. 22-1195
opinion cites include a gap in time, distance, or different con-
duct such as here.
This leads to a harsh result for Evans. Due to his prior
criminal history, he faces a mandatory 25-year sentence for
each additional § 924(c) conviction. See 18 U.S.C.
§ 924(c)(1)(C)–(D). This court acknowledged in Cejas that a
“defendant who sells drugs to multiple customers at different
times on the same day while possessing a gun could be sub-
jected to multiple consecutive convictions under § 924(c),
while an individual who sells the same quantity of drugs to
one customer would not.” 761 F.3d at 731. Here, Evans faced
a second § 924(c) charge when the government sought and se-
cured a superseding indictment. As stated in Cejas, this court
does “not have the authority to step into the place of the pros-
ecutors” to exercise discretion regarding which charges to
bring. Id. at 732.
In my judgment, Evans’s possession of a firearm in fur-
therance of two distinct predicate offenses which did not oc-
cur at the same time supports two § 924(c) charges.
II. Motion for New Trial
The district court, in my view, did not abuse its discretion
in denying Evans’s motion for a new trial without an eviden-
tiary hearing. See United States v. Foy, 50 F.4th 616, 622 (7th Cir.
2022), cert. denied, No. 22-849, 2023 WL 4163220 (U.S. June 26,
2023) (noting this court reviews the denial of a new trial mo-
tion for an abuse of discretion).
Notwithstanding this court’s previous warnings about do-
ing so, Evans brought his ineffective assistance of counsel
claim on direct appeal through a motion for a new trial. See
FED. R. CRIM. P. 33. Usually, this court “leave[s] ineffective
No. 22-1195 27
assistance of counsel claims for collateral review.” United
States v. Simpson, 864 F.3d 830, 834 (7th Cir. 2017). But “an in-
effective assistance claim raised in a motion for new trial” is
typically “addressed by holding an evidentiary hearing for
the trial court to consider the evidence of the trial counsel’s
deficiency and its possible effect on the outcome.” United
States v. Malone, 484 F.3d 916, 919 (7th Cir. 2007). We review
the denial of an evidentiary hearing for abuse of discretion.
United States v. Coscia, 4 F.4th 454, 482 (7th Cir. 2021).
To obtain relief for ineffective assistance of counsel, the de-
fendant must first show that defense counsel’s “performance
was deficient,” as measured by “an objective standard of rea-
sonableness … under prevailing professional norms.” Strick-
land v. Washington, 466 U.S. 668, 687–88 (1984). To establish
deficiency, a defendant must “show that his counsel’s errors
were so far below the level of competent representation that
it was as though he had no counsel at all.” Myers v. Neal, 975
F.3d 611, 620 (7th Cir. 2020). Second, “the defendant must
show that the deficient performance prejudiced the defense,”
meaning there is “a reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 687, 694.
The majority opinion concludes—and I agree—that
Sarm’s trial performance does not provide a basis for reversal.
Instead, the focus is in on a single aspect of Sarm’s pretrial
performance: assisting Evans in pursuing a motion to with-
draw his guilty plea on the first § 924(c) charge. It is important
to note that Evans does not argue that Sarm provided ineffec-
tive assistance by helping him withdraw his guilty plea. See
United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)
(noting that, under the party presentation principle, parties
28 No. 22-1195
“are responsible for advancing the facts and argument enti-
tling them to relief”). Neither party briefed this matter in the
district court or on appeal. So, arguably, the matter is waived.
See Santiago v. Streeval, 36 F.4th 700, 710 (7th Cir. 2022) (“An
argument not raised … before the district court is waived on
appeal.”); Vesey v. Envoy Air, Inc., 999 F.3d 456, 464 (7th Cir.
2021) (“Undeveloped arguments are waived on appeal.”).
Beyond waiver, Sarm’s aid to Evans in withdrawing his
guilty plea does not amount to deficient performance. Even
when represented by different counsel, Evans persisted in his
efforts to withdraw his guilty plea on the § 924(c) charge. With
the assistance of counsel David Rumley, in April and May
2017, Evans pleaded guilty to three of the initial four charges
against him, including the § 924(c) charge. Shortly afterwards,
Evans talked with Rumley about his desire to withdraw his
guilty plea on the § 924(c) count. Rumley had warned Evans
that doing so might rub prosecutors the wrong way. In Janu-
ary 2018, Evans filed a pro se motion alleging Rumley pro-
vided ineffective assistance of counsel because Evans “would
not have plead[ed] guilty” to the two other drug charges had
he known he faced a sentencing enhancement. Viewing that
motion as a request for new counsel, the district court ap-
pointed attorney Harvey Welch to represent Evans.
Welch—not Sarm—filed an initial motion to withdraw Ev-
ans’s guilty plea on only the § 924(c) charge. Due to Welch’s
“lack of communication” and his “not taking the time … to
properly prepare [Evans’s] motion to withdraw [his] plea,”
Evans filed another pro se motion requesting new counsel.
Enter Sarm—the eighth attorney to represent Evans during
these proceedings. Sarm refiled Evans’s motion to withdraw
his guilty plea on the § 924(c) charge, and the district court
No. 22-1195 29
held a hearing on the motion. The district court noted that Ev-
ans was aware of the “25-year mandatory minimum” sen-
tence. After hearing testimony from Evans, the district court
concluded that the “fair and just result” was to allow the de-
fendant to withdraw his guilty plea.
Evans consistently expressed his desire to withdraw his
guilty pleas. With the assistance of three consecutive, differ-
ent attorneys, Evans sought to do just that—take his chances
at trial. He knew the consequences could be severe, as he was
expressly aware of the 25-year mandatory sentence that ac-
companied the § 924(c) charge. Sarm’s decision to help Evans
pursue the motion to withdraw his § 924(c) guilty plea origi-
nally filed by Evans’s former counsel does not amount to an
“overall deficient performance.” Pole v. Randolph, 570 F.3d
922, 934 (7th Cir. 2009).
For the majority opinion, Sarm’s heroin overdose 19 days
after trial changes the calculus. According to a police report
on the incident, Sarm’s girlfriend told police officers that Sarm
“had an alcohol and substance abuse problem for at least six
years.” 2 While this report is concerning, Evans provided, ac-
cording to the district court, “no evidence that Sarm was im-
paired during or before trial.”
2 According to the majority opinion, Sarm “was addicted to and using
heroin before, during, and after trial.” The police report states that Sarm
dealt with a substance abuse problem for six years. But that report does
not speak to when Sarm used controlled substances during those six years.
In fact, Sarm’s girlfriend believed he had gone to an Alcoholics Anony-
mous meeting on the night he overdosed. I do not see support in the rec-
ord, including in the police report, that Sarm was using heroin before and
during trial.
30 No. 22-1195
After Evans learned of Sarm’s overdose, the district court
granted Evans’s request to file a tardy motion for a new trial.
After reviewing Evans’s motion and the government’s re-
sponse, the district court was not satisfied with how the par-
ties had addressed the “central issue” of “whether Sarm was
impaired during his representation of [Evans].” So, the court
ordered both parties to file position statements addressing a
series of specific questions:
(1) was Sarm in some way impaired during
trial (or before trial)?
(2) if Sarm testifies or provides an affidavit that
he was impaired during relevant times,
what impact does that have on Defendant’s
ineffective assistance claim?
(3) if Sarm testifies or provides an affidavit that
he was not impaired during relevant times,
what impact does that have on Defendant’s
ineffective assistance claim?
(4) absent any evidence directly from Sarm on
his condition (whether by testimony or affi-
davit), what can the court permissibly infer
and how should that affect the court’s rul-
ing on the issue of a new trial?
(5) even if the evidence against Defendant was
overwhelming, would Sarm’s potential con-
dition during the trial (or before) constitute
a structural error necessitating a new trial,
regardless of the impact the condition had
on Sarm’s representation?
No. 22-1195 31
The court reviewed those statements and concluded
“there [was] no evidence in the record that Sarm was im-
paired or under the influence of any illegal narcotic, or any
drug, during or before [Evans’s] trial.” The only evidence on
the matter of Sarm’s impairment before and during trial was
Sarm’s affidavit. In it, Sarm averred he “was not impaired …at
any relevant time,” including during Evans’s jury trial, pre-
trial hearings, trial preparation, and meetings with Evans. Alt-
hough the affidavit may serve Sarm’s self-interest, Evans pre-
sented no evidence to rebut Sarm’s assertions. See Galbraith v.
United States, 313 F.3d 1001, 1010 (7th Cir. 2002) (noting “[the
defendant] himself [could] have submitted a sworn affidavit
recounting the facts … and surrounding events” in support of
his claim for ineffective assistance of counsel).
Crucially to me, the district court stated it “had the oppor-
tunity during many months, in many lengthy and substantive
courtroom proceedings (including motion hearings and trial)
to observe Sarm’s behavior and performance” and “[a]t no
time did [it] have any indication that Sarm was impaired or
under the influence in any way.” At the conclusion of trial, the
district court even found Sarm’s representation of Evans to be
“commendable,” stating on the record to Sarm and Evans:
“Just for what it’s worth, I thought you did a really good job.
Mr. Evans, I hope you appreciate what a good job Mr. Sarm
has done.” Indeed, even if there was proof of Sarm’s impair-
ment before or during trial, that would not amount to per se
ineffective assistance of counsel. See Burdine v. Johnson, 262
F.3d 336, 395 (5th Cir. 2001) (“Prejudice has not been pre-
sumed for claims of denial of effective-assistance due to coun-
sel’s alleged impairment because of alcohol, drug use, or a
mental condition.”); see also United States v. Jackson, 930 F.
Supp. 1228, 1234 (N.D. Ill. 1996) (“Alcoholism, or even alcohol
32 No. 22-1195
or drug use during trial, does not necessarily constitute a per
se violation of the Sixth Amendment absent some identifiable
deficient performance resulting from the intoxication.”). So,
Evans still would have needed to show that Sarm’s alleged
impairment resulted in deficient performance and caused him
prejudice.
A district court does not abuse its discretion by declining
to hold an evidentiary hearing when “there is no reason to
suppose that a hearing would produce evidence justifying the
grant of a new trial.” Simpson, 864 F.3d at 834. As mentioned,
Evans did not argue in his motion for new trial that Sarm
erred in advising him to withdraw his guilty plea or that he
was prejudiced as a result—even with hindsight of the addi-
tional § 924(c) charge. Nor does he do so on appeal with the
assistance of appointed counsel. Instead, Evans took issue
with topics like Sarm’s preparedness for trial, his decision not
to present evidence, and his cross-examination of certain wit-
nesses. But the district court concluded that Evans had failed
to explain “how counsel was deficient and how exactly that de-
ficiency prejudiced him.” Characterizing allegations of Sarm’s
impairment as conclusory or speculative rather than specific,
the court found that an evidentiary hearing was not neces-
sary.
The district court did not abuse its discretion in reaching
that decision. It relied on its own observations of Sarm’s ac-
tions and representation of Evans during several court ap-
pearances and a three-day trial, the parties’ position state-
ments, and the lack of evidence that Sarm was impaired be-
fore or during trial. I do not fault the district court for failing
to address an argument not presented. For these reasons, I
No. 22-1195 33
also part ways with my colleagues on the decision to vacate
the district court’s denial of Evans’s motion for a new trial.