United States v. Jackie Ray Hill

971 F.2d 1461, 1992 U.S. App. LEXIS 17650, 1992 WL 182887

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 4, 1992
• Docket: 91-7009
• Status: Published

Opinions

BALDOCK, Circuit Judge.

In United States v. Morehead, 959 F.2d 1489 (10th Cir.1992), a divided panel affirmed Defendant-appellant Jackie Ray Hill’s conviction for conspiracy to use or carry a firearm during and in relation to the commission of a drug trafficking offense. See id. at 1499-1504. See also id. at 1513-14 (Moore, J., dissenting). The conspiracy for which Mr. Hill was convicted was charged under 18 U.S.C. § 371, and the unlawful objective was to violate 18 U.S.C. § 924(c)(1). Mr. Hill had also been charged in the same indictment with conspiring to manufacture, possess and distribute marijuana under 21 U.S.C. § 846; five substantive drug offenses relating to a marijuana cultivation operation at a code-fendant’s residence; one count of simple possession of a different drug; and one substantive § 924(c) violation. The drug trafficking offenses underlying the § 924(c) unlawful objective of the § 371 conspiracy were the § 846 conspiracy and two of the substantive marijuana offenses which were also alleged as the unlawful objectives of the § 846 conspiracy. Mr. Hill was either acquitted or had the counts dismissed on all charges except for the § 371 conspiracy to violate § 924(c). We granted Mr. Hill’s suggestion for rehearing en banc to consider the narrow issue of whether a person can be convicted of conspiracy to violate 18 U.S.C. § 924(c).

We begin by considering whether the charge was proper.¹ Section 371 of title 18 provides that “[i]f two or more persons conspire ... to commit any offense against the United States ... and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.” 18 U.S.C. § 371 (emphasis added). The “essence” of a conspiracy “is the agreement or confederation to commit a crime.” United States v. Bayer, 331 U.S. 532, 542, 67 S.Ct. 1394, 1399, 91 L.Ed. 1654 (1947). See also United States v. Felix, — U.S. -, -, 112 S.Ct. 1377, 1384, 118 L.Ed.2d 25 (1992); Ianelli v. United States, 420 U.S. 770, 777, 95 S.Ct. 1284, 1289, 43 L.Ed.2d 616 (1975). The law of conspiracy “seeks to protect society from the dangers of concerted criminal activity,” which is viewed as “a greater potential threat to the public than individual delicts,” by imposing “criminal sanctions for the agreement alone, plus an overt act in pursuit of it, regardless of whether the crime agreed upon is actually committed.” United States v. Feola, 420 U.S. 671, 693-94, 95 S.Ct. 1255, 1268, 43 L.Ed.2d 541 (1975); Callanan v. United States, 364 U.S. 587, 593-94, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961). Accordingly, to determine whether § 924(c)(1) may be charged as the unlawful objective of a § 371 conspiracy, we must determine whether 18 U.S.C. § 924(c)(1) is an “offense against the United States.”

Section 924(c)(1) provides in relevant part:

Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime be sentenced to imprisonment for five years... ,²

18 U.S.C. § 924(c)(1). At first glance, § 924(c)(1) appears to be a penalty enhancement statute. Section 924 is entitled “Penalties,” and its remaining subsections set forth penalties for firearms offenses. Section 924(c)(1) provides that its penalty is “in addition to the punishment” provided by the underlying crime, and a conviction under § 924(c)(1) requires proof that the defendant committed the underlying crime of violence or drug trafficking crime. United States v. Munoz-Fabela, 896 F.2d 908, 910 (5th Cir.), cert. denied, — U.S.-, 111 S.Ct. 76, 112 L.Ed.2d 49 (1990); United States v. Hunter, 887 F.2d 1001, 1003 (9th Cir.1989) (per curiam), cert, denied, 493 U.S. 1090, 110 S.Ct. 1159, 107 L.Ed.2d 1062 (1990). See also H.R.Rep. No. 495, 99th Cong., 2d Sess. 10, reprinted in 1986 U.S.C.C.A.N. 1327, 1335 (construing earlier version of § 924(c) as requiring “proof of the defendant’s commission of the. [underlying] crime”). Indeed, § 924(c) has been characterized as a “enhancement” statute. See Busic v. United States, 446 U.S. .398, 405, 100 S.Ct. 1747, 1752, 64 L.Ed.2d 381 (1980) (characterizing earlier version of § 924(c) as an “enhancement scheme”); Ec-kert v. Tansy, 936 F.2d 444, 449. (9th .Cir. 1991) (citing § 924(c) as example of “weapons enhancement scheme”); United States v. Henning, 906 F.2d 1392, 1399 (10th Cir. 1990) (“924(c) is an enhancement statute”), cert, denied, — U.S.-, 111 S.Ct. 789, 112 L.Ed.2d 852 (1991); United States v. Sherbondy, 865 F.2d 996, 1010 n. 18 (9th Cir.1988) (“924(c) ... is a sentence enhancement provision”).³

Nevertheless, we recently stated that “section 924(c) creates distinct offenses rather than being merely a sentencing enhancement provision.” United States v. Abreu, 962 F.2d 1447, 1451 (10th Cir.1992) (en banc) (citations omitted) (distinguishing conflicting authority and applying principles of lenity and strict construction based on distinction), petition for cert, filed, No. 96-67 (U.S. July 9, 1992). See also Simpson v. United States, 435 U.S. 6, 10, 98 S.Ct. 909, 912, 55 L.Ed.2d 70 (1978) (“[§ 924(c) is] an offense distinct from the underlying federal felony”); United States v. Martinez, 924 F.2d 209, 211 n. 2 (11th Cir.) (per curiam) (“924(c)(1) creates a separate offense and separate sentence”), cert. denied, — U.S. -, 112 S.Ct. 203, 116 L.Ed.2d 163 (1991); Munoz-Fabela, 896 F.2d at 910 (“[924(c)(1) ] constitutes an independent basis for criminal liability”); Hunter, 887 F.2d at 1003 (“924(c)(1) defines a separate crime rather than merely enhancing the punishment for other crimes”). This interpretation finds support in the statutory language which provides that the underlying offense need only be one for which the defendant “may be prosecuted in a court of the United States," and provides for a greater sentence for a “second or subsequent conviction under this subsection.” 18 U.S.C. § 924(c)(1) (emphasis added).

Because § 924(c) is a separate offense, “a conviction and sentence under § 924(c) requires the full panoply of constitutional safeguards ordinarily granted criminal defendants.” Martinez, 924 F.2d at 211 (citation omitted). While proof of the underlying crime is necessary to convict under § 924(c), a defendant need not be convicted of the underlying crime in order to be convicted of § 924(c). United States v. Wilkins, 911 F.2d 337, 338 n. 1 (9th Cir.1990); United States v. Robertson, 901 F.2d 733, 734 (9th Cir.), cert, denied, — U.S. -, 111 S.Ct. 395, 112 L.Ed.2d 405 (1990); Munoz-Fabela, 896 F.2d at 911; Hunter, 887 F.2d at 1003. A defendant need not even be charged with the underlying crime to be convicted under § 924(c). United States v. Wilson, 884 F.2d 174, 176 (5th Cir.1989). Section 924(c) convictions have been upheld under an aiding and abetting theory, see United States v. Hamblin, 911 F.2d 551, 558 (11th Cir. 1990), cert. denied, — U.S.-, 111 S.Ct. 2241, 114 L.Ed.2d 482 (1991), and under a Pinkerton theory.⁴ See United States v. Johnson, 886 F.2d 1120, 1124 (9th Cir. 1989), cert. denied, 494 U.S. 1089, 110 S.Ct. 1830, 108 L.Ed.2d 959 (1990); United States v. Reborn, 872 F.2d 589, 595-96 (5th Cir.1989); United States v. Diaz, 864 F.2d 544, 548-49 (7th Cir.1988), cert. denied, 490 U.S. 1070, 109 S.Ct. 2075, 104 L.Ed.2d 639 (1989). In short, notwithstanding the characterization of § 924(c)(1) as an “enhancement” statute, courts have uniformly treated § 924(c) as a substantive offense, distinct from the underlying crime.

In United States v. Sudduth, 457 F.2d 1198 (10th Cir.1972), the court held that the earlier version of § 924(c) “was intended to create a separate crime,” and was not merely an “enhancement of penalty.”⁵ Id. at 1201-02. The court recognized that “[t]he general placement of the subsection obviously causes much of the present concern as to the intention of Congress,” but, after thoroughly examining § 924(c)’s legislative history, reasoned that “[t]he manner in which section 924(c) was adopted by Congress and the fact that it originated in both 1968 and 1970 versions by way of floor amendment helps in understanding why the subsection was placed in the Act where it was.” Id. at 1200. The court also noted that § 924('c)’s “dependence] upon the basic felony” contributed to “the appearance that the matter relates to the enhancement of the penalty and not to the creation of a separate crime.” Id. Nevertheless, § 924(c)’s “reference to ‘subsequent convictions under this subsection’ ” and its dependence on “facts or inferences which will be disputed or contested and from which different inferences may be drawn ... mak[ing] the matter properly to be demonstrated to the satisfaction of the jury,” led to the conclusion that § 924(c) was intended to create a separate crime. Id. at 1201. This reasoning is equally applicable to the present version of the statute.

The Supreme Court cited Sudduth with approval in recognizing that the earlier version of § 924(c) “creat[ed] an offense distinct from the underlying federal felony— ” Simpson, 435 U.S. at 10, 98 S.Ct. at 912 (citing United States v. Ramirez, 482 F.2d 807 (2d Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 475 (1973); Sudduth, 457 F.2d at 1198). In Simpson, the. Supreme Court held that a defendant could not be sentenced under both § 924(c) and 18 U.S.C. § 2113(d), the firearms enhancement provision to the bank robbery statute.⁶ Id. at 16, 98 S.Ct. at 915. The Supreme Court revisited § 924(c) in Busic, and, relying on essentially the same reasoning as Simpson, held that “a defendant who uses a firearm in the course of a felony that is proscribed by a statute which itself authorizes enhancement if a dangerous weapon is used” may have his sentence “enhanced only under the enhancement provision in the statute defining the felony_”⁷ 446 U.S. at 399-400, 100 S.Ct. at 1749. Busic gives us pause because of the Court’s repeated characterization of § 924(c) as an enhancement statute.⁸ Were we confronted solely with the differing characterizations of § 924(c) of Simpson and Busic, this would be a closer case. However, the interpretation of § 924(c) as a substantive offense, distinct from the underlying drug trafficking crime or crime of violence, finds support in the legislative history of subsequent amendments to § 924(c).⁹

In 1984, Congress, responding to the Supreme Court’s decisions in Simpson and Busic, amended § 924(c) to provide for a mandatory consecutive sentence even when the underlying offense provided for an enhanced sentence for use of a firearm. See Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, § 1005, 98 Stat. 1837, 2138. See also United States v. Lanzi, 933 F.2d 824, 826 (10th Cir.1991) (discussing legislative history leading to 1984 amendment). In doing so, Congress clearly stated that “[sjection 924(c) sets out an offense distinct from the underlying felony and is not simply a penalty provision.” S.Rep. No. 225, 98th Cong., 2d Sess. 312, reprinted in 1984 U.S.C.C.A.N. 3182, 3490. Similarly, in 1986, when Congress again amended § 924(c) to include drug trafficking crimes in addition to crimes of violence as a predicate to a § 924(c) conviction, see Firearms Owners’ Protection Act, Pub.L. No. 99-308, § 104(a)(2), 100 Stat. 449, 456 (1986), it recognized that “[ajlthough ... section 924(c) ... is frequently referred to as a penalty enhancement provision it is in reality a separate offense from crimes of violence_” H.R.Rep. No. 495, 99th Cong., 2d Sess. 10, reprinted in 1986 U.S.C.C.A.N. 1327, 1336. Both the 1984 Senate report and the 1986 House report cited Simpson for their characterization of § 924(c) as a “distinct” or “separate” offense. Admittedly, Simpson was interpreting an earlier version of § 924(c). However, nothing in any of the subsequent amendments to § 924(c) indicates that Congress intended to change § 924(c) from a “distinct” and “separate” offense to a penalty enhancement statute.¹⁰

We believe that our recent characterization in Abreu of § 924(c) as a “distinct” offense rather than “merely a sentencing enhancement provision” is a correct interpretation of the statute. Since a person can violate § 924(c)(1) by using or carrying a firearm during and in relation to the commission of a drug trafficking offense, “a conspiracy to commit [the] offense is nothing more than an agreement to engage in the prohibited conduct.” Feola, 420 U.S. at 687, 95 S.Ct. at 1265. Given § 371’s broad language proscribing a conspiracy to commit “any offense against the United States,” we can see no reason why § 924(c)(1) cannot be charged as the unlawful objective of a § 371 conspiracy. See United States v. Harris, 959 F.2d 246 (D.C.Cir.1992) (per curiam) (affirming conviction for conspiracy to violate § 924(c) against a claim that it was multiplicitous of drug conspiracy charged in separate count), petition for cert. filed, No. 91-8167 (U.S. May 7, 1992).

Having determined that the charge was proper, we now turn to the conviction in this particular case. Amicus argues that Mr. Hill’s conviction cannot stand because he has not admitted to or been convicted of one of the drug trafficking offenses underlying the § 924(c) unlawful objective to the § 371 conspiracy. This argument is premised on the interpretation of § 924(c)' as an enhancement statute; we have already rejected this interpretation. Furthermore, a conviction on an underlying drug trafficking offense is not a prerequisite to a substantive § 924(c) conviction. Wilkins, 911 F.2d at 338 n. 1; Robertson, 901 F.2d at 734; Munoz-Fabela, 896 F.2d at 911; Hunter, 887 F.2d at 1003. Indeed, the plain language of § 924(c)(1) provides only that the underlying offense be one “for which [the defendant] may be prosecuted in a court of the United States.” 18 U.S.C. § 924(c)(1) (emphasis added). The fact that § 924(c) is charged as the unlawful objective of a conspiracy does not lead to a contrary result. Cf. Feola, 420 U.S. at 686-96, 95 S.Ct. at 1265-69 (rejecting argument that government must show degree of criminal intent in conspiracy count greater than is necessary to convict for substantive offense). While all of the cases holding that a conviction on the underlying offense is not a prerequisite to a conviction on a substantive § 924(c) charge involved defendants who admitted to the commission of the underlying offense, we do not view the admission as critical in light of our recognition of § 924(c) as a substantive offense rather than an enhancement statute. Rather, the defendant’s commission of the underlying offense is merely a matter of proof which may be met either by the defendant’s admission or through the presentation of evidence sufficient to sustain the government’s burden. See Munoz-Fabela, 896 F.2d at 911 (“only the fact of the offense ... is needed to establish the required predicate”). Cf Wilson, 884 F.2d at 176 n. 2 (government could not rely on defendant’s guilty plea in state court to drug offense but was required to present additional evidence on the predicate drug trafficking offense).

We have a more fundamental disagreement with amicus’ argument which presupposes that proof of the underlying crime is necessary to a conviction for conspiring to violate § 924(c). While proof of the underlying crime is an essential element of a substantive § 924(c)(1) violation, Munoz-Fabela, 896 F.2d at 910; Hunter, 887 F.2d at 1003; H.R.Rep. No. 495, 99th Cong., 2d Sess. 9, reprinted in 1986 U.S.C.C.A.N. 1327, 1335, the law of conspiracy does not require that essential elements of the unlawful objective of the conspiracy,be proven to sustain a conspiracy conviction. “The law of conspiracy ... permit[s] the imposition of criminal sanctions for the agreement alone, plus an overt act in pursuit of it, regardless of whether the crime agreed upon is actually committed.” Feola, 420 U.S. at 694, 95 S.Ct. at 1268 (emphasis added) (citing Bayer, 331 U.S. at 542, 67 S.Ct. at 1399). “The agreement to do an unlawful act is ... distinct from the doing of. the act.” Pinkerton v. United States, 328 U.S. 640, 644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946) (footnote omitted). See also Braverman v. United States, 317 U.S. 49, 54, 63 S.Ct. 99, 102, 87 L.Ed. 23 (1942) (“[a] conspiracy is not' the commission of the crime which it contemplates, and neither violates nor ‘arises under’ the statute whose violation is its object”) (citations omitted). Accordingly, proof of the underlying drug trafficking crime or crime of violence is not necessary for a conspiracy to violate § 924(c)(1) conviction.

Mr. Hill presents a variation on this same argument, contending that because proof of the underlying crime is necessary to convict a person for a substantive violation of § 924(c)(1), a person who conspires to violate § 924(c)(1) necessarily conspires to commit the underlying crime.¹¹ The panel rejected a similar argument made by Mr. Hill’s codefendant, John Wesley Morehead, Jr., who contended that his conviction for conspiring to violate § 924(c)(1) was multi-plicitous of his conviction for conspiring to commit the same drug trafficking offense underlying the § 924(c)(1) unlawful-objective. See Morehead, 959 F.2d at 1508-09. Accord Harris, 959 F.2d at 251. The panel held that a conspiracy to use or carry a firearm during and in relation to a drug trafficking offense required only that the defendant agree to use or carry a firearm and that the defendant intended to commit a drug trafficking offense; the particular drug trafficking offense does not have to be within the scope of the agreement to carry firearms so long as each conspirator intended to commit a drug trafficking offense. Morehead, 959 F.2d at 1508-09 (“[although the firearms conspiracy requires proof that the defendant intended to commit an underlying drug trafficking offense, it does not necessarily require an agreement among the conspirators to commit a drug trafficking offense”). Under the panel’s reasoning, a person who conspires to violate § 924(c) does not necessarily conspire to commit the underlying drug trafficking offense but rather need only have the requisite intent to commit it. We need not resolve whether an agreement to commit the underlying offense or merely the intent to commit the underlying offense must be proved to sustain a conviction for conspiracy to violate § 924(c)(1), because even under Mr. Hill’s interpretation, he would not be entitled to relief.

Mr. Hill argues that because he was acquitted of the § 846 conspiracy as well as all the other substantive drug trafficking offenses, the jury could not have rationally convicted him of the § 871 conspiracy to violate § 924(c)(1) when the underlying drug trafficking crimes were the same crimes for which he was acquitted. In United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), the Supreme Court confronted an analytically identical situation and rejected the very argument presented by Mr. Hill. In Powell, the defendant was acquitted of a drug conspiracy and possession with intent to distribute but convicted of using the telephone to facilitate these same offenses. Id. at 59-60, 105 S.Ct. at 474. The Supreme Court held that the inconsistency of convicting on the compound offense while acquitting of the offense that necessarily must be proved to convict on the compound offense did not warrant reversal. Id. at 69, 105 S.Ct. at 479. The Court followed the rule first set forth in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), that “ ‘[consistency in the verdict is not necessary.’ ” Powell, 469 U.S. at 62, 105 S.Ct. at 475 (quoting Dunn, 284 U.S. at 393, 52 S.Ct. at 190). See also Harris v. Rivera, 454 U.S. 339, 345-46, 102 S.Ct. 460, 464, 70 L.Ed.2d 530 (1981) (per curiam); United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134, 135, 88 L.Ed. 48 (1943). The Court expressly rejected exceptions to the Dunn rule applied by lower courts for conspiracy convictions when the defendant was acquitted of all the overt acts charged as separate substantive counts, see United States v. Morales, 677 F.2d 1, 3 (1st Cir.1982), and for telephone facilitation convictions in which the defendant was acquitted of the predicate offense, see United States v. Brooks, 703 F.2d 1273, 1278-79 (11th Cir.1983); United States v. Hannah, 584 F.2d 27, 30 (3d Cir.1978). Powell, 469 U.S. at 63-64, 105 S.Ct. at 476. The Court reasoned that

inconsistent verdicts — even verdicts that acquit on a predicate offense while convicting on the compound offense — should not necessarily be interpreted as a windfall to the Government at the defendant’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise or lenity, arrived at an inconsistent conclusion on the lesser offense.

Id. at 65, 105 S.Ct. at 477. The Court declined to recognize an exception to the Dunn rule where the jury acquits on the predicate offense but convicts on the compound offense, stating that “[sjuch an exception falls almost of its own. weight.” Id. at 67, 105 S.Ct. at 478. Not only would such an exception “threaten[] to swallow the rule, ... [it] simply misunderstands the nature of the inconsistent verdict problem.” Id. at 68, 105 S.Ct. at 478. The Court reasoned -

Whether presented as an insufficient evidence argument, or as an argument that the acquittal on the predicate offense should collaterally estop the Government on the compound offense, the argument necessarily assumes that the acquittal on the predicate offense was proper — the one the jury “really meant.” This of course, is not necessarily correct; all we know is that the verdicts are inconsistent. The Government could just as easily — and erroneously — argue that since the jury convicted on the compound offense the evidence on the predicate must have been sufficient.

Id. Powell clearly forecloses Mr. Hill’s legal challenge to his conviction for conspiracy to violate § 924(c)(1) based upon his acquittal of the predicate drug trafficking offenses.

The dissenting judge in the initial appeal attempted to detour Powell by reasoning that “[t]he interdependence of the charges in the indictment lead [to the conclusion that] the jury could not have rationally acquitted on one count and convicted on the other.” Morehead, 959 F.2d at 1514 n. 1 (Moore, J., dissenting). This argument misconstrues the standard we apply in reviewing the sufficiency, and, in doing so echoes the very exceptions to the Dunn rule that the Supreme Court clearly rejected in Powell. In reviewing the sufficiency of the evidence, we determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis added) (citation omitted). See also United States v. Nall, 949 F.2d 301, 306 (10th Cir.1991); United States v. Cardall, 885 F.2d 656, 673 (10th Cir.1989). Thus, the test is not whether the particular jury in this case acted rationally. To reverse convictions merely because the jury’s verdict on separate counts cannot be rationally reconciled would eviscerate the rule set forth, in Powell because inconsistent verdicts, by their very nature, are irrational if we assume, as we must, that the jury followed the court’s instructions. Powell addressed this very issue:

a criminal defendant is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts. This review should not be confused with the problems caused by inconsistent verdicts. Sufficiency-of-the-evidence review involves assessment by the courts of whether the evidence adduced at trial could support any rational determination of guilt beyond a reasonable doubt. This review should be independent of the jury’s determination that the evidence on another count was insufficient. The Government must convince the jury with its proof, and must also satisfy the courts that given this proof the jury could rationally have reached a verdict of guilt beyond a reasonable doubt. We do not believe that further safeguards against jury irrationality are necessary.

Powell, 469 U.S. at 67, 105 S.Ct. at 478 (emphasis added) (internal citations omitted). The majority reviewed the evidence, and determined, independent of Mr. Hill’s acquittal on the other charges, that a rational trier of fact could have found all of the essential elements of the crime beyond a reasonable doubt. Morehead, 959 F.2d at 1502-04. We have no reason to disturb this holding as the issue presented for en banc consideration is strictly a legal one. Mr. Hill’s acquittal on the drug trafficking conspiracy and substantive offenses is not a ground to reverse his conviction for conspiring to use or carry firearms during and in relation to the commission of a drug trafficking offense.

AFFIRMED.

1 . Our concern in granting Mr. Hill’s suggestion for rehearing en banc was prompted in part by the fact that this particular charge, while popular with the instant prosecutor, seems to be rarely pursued by the government. The majority found only two other cases in which this had been charged and both involved this particular prosecutor. See Morehead, 959 F.2d at 1501 n. 3. See also United States v. Sullivan, 919 F.2d 1403 (10th Cir.1990); United States v. Bullock, 914 F.2d 1413 (10th Cir.1990). The government claims that this charging practice does not re-fleet an exceptional construction of the statute and cites to six other cases from around the country in which § 924(c) was charged as the unlawful objective of a § 371 conspiracy. Six other prosecutions nationwide since the inception of the statute nearly 25 years ago does not convince us that the charge is not extraordinary. Moreover, all of the cases cited by the government, with one exception, involved prosecutions in which § 924(c) and another crime were charged as the unlawful objectives of a § 371 conspiracy. See United States v. Fox, 941 F.2d (7th Cir. 1991) (conspiracy to execute armed bank robberies and to use firearms during crimes of violence), cert, denied, — U.S. -, 112 S.Ct. 1190, 117 L.Ed.2d 431 (1992); United States v. Luskin, 926 F.2d 372, 373 (4th Cir.) (conspiracy to commit murder, to carry a firearm in relation to a crime of violence and to carry an unregistered firearm), cert, denied, — U.S.-, 112 S.Ct. 68, 116 L.Ed.2d 43 (1991); United States v. Hedgcorth, 873 F.2d 1307, 1309 (9th Cir.) (conspiracy to destroy property and to possess and use "incendiary destructive devices”), cert, denied, 493 U.S. 857, 110 S.Ct. 164, 107 L.Ed.2d 122 (1989); United States v. Cube-an, 611 F.2d 257, 258 (8th Cir.) (per curiam) (conspiracy to commit bank robbery and to use a firearm in the commission of a felony), cert, denied, 445 U.S. 919, 100 S.Ct. 1283, 63 L.Ed.2d 604 (1980); United States v. Habicht, 766 F.Supp. 22, 24-25 (D.Mass.1991) (conspiracy to commit bank robbery and to use a firearm during the commission of the bank robbery). Because § 924(c) was charged with its underlying crime as the unlawful objectives of the §371 conspiracy, these courts were not confronted with the issues presented by the charge in the instant case. A conviction on a charge identical to the one at issue here was recently upheld by the D.C. Circuit. United States v. Harris, '959 F.2d 246 (D.C.Cir.1992) (per cu-riam), petition for cert, filed, No. 91-8167 (U.S. May 7, 1992). While the court did not directly address whether the charge was proper, it implicitly recognized its propriety in affirming the conviction over a multiplicity challenge based on the defendant's dual convictions on the § 371 conspiracy and the § 846 conspiracy. Id. at 251. Accord Morehead, 959 F.2d at 1508-09 (affirming Hill’s codefendant’s dual convictions for § 371 conspiracy to violate § 924(c) and § 846 conspiracy over multiplicity challenge). While Harris supports the government’s position here, our research indicates that it, like the ' present case, represents an exceptional charging practice rather than the norm among prosecutors throughout the country.

2 . The statute provides for enhanced penalties for particularly dangerous types of firearms and for second or subsequent convictions. The statute also provides that its sentence is mandatory and may not run concurrent with the sentence imposed for the underlying crime of violence or drug trafficking crime.

3 . While several courts have characterized § 924(c) as an enhancement statute, the distinction between a substantive offense and an enhancement statute Was not critical to the holding in any of these cases. See Busic, 446 U.S. at 399-400, 100 S.Ct. at 1863 (holding that earlier version of § 924(c) could not be applied to a defendant who uses a firearm during the course of a felony which itself authorizes enhancement if a dangerous weapon is used); Eckert, 936 F.2d at 449 (rejecting Eighth Amendment challenge to state weapon enhancement- statute and citing to § 924(c) to compare penalties); Hen-ning, 906 F.2d at 1309 (holding that use of two firearms during commission of one drug trafficking offense constituted single firearm offense that could not be punished as two separate § 924(c) violations); Sherbondy, 865 F.2d at 1003-10 (holding that defendant’s actual conduct could not be considered in determining whether a prior conviction was a "violent felony” within the meaning of 18 U.S.C. § 924(e)(1) and citing to earlier case similarly interpreting § 924(c)). These characterizations of § 924(c) as an enhancement statute provide scant support for the proposition that § 924(c) is a penalty enhancement statute as opposed to a separate offense.

4 . In Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), the Supreme Court held that coconspirators may be liable for each others’ criminal acts done in furtherance of the conspiracy if the acts are reasonably foreseeable as a necessary and natural consequence of the conspiracy. Id. at 646-48, 66 S.Ct. at 1183-84.

5 . In Sudduth, the defendant was initially charged in a two-count indictment; one count alleged a violation of § 924(c). 457 F.2d at 1199. The district court dismissed the § 924(c) count pretrial, and, following the defendant’s conviction on the other count, imposed a one-year sentence under § 924(c) to run consecutive to the defendant’s sentence on the count for which he was convicted. Id. After determining that § 924(c) "was intended and should be proved as a separate crime,” the court vacated the dismissal of the § 924(c) count and the sentence imposed under § 924(c). Id. at 1201-02.

6 . While the Simpson Court recognized the possible double jeopardy implications, it avoided the constitutional question by holding that Congress did not intend multiple penalties. Id. at 11-12, 98 S.Ct. at 912-13. The Court relied on the legislative history of § 924(c), as well as the rule of lenity and the principle that where two statutes speak to the same concern, the more specific statute will govern. Id. at 13-15, 98 S.Ct. at 913-14.

7 . The issue of whether a defendant could be sentenced under both statutes was clearly foreclosed by Simpson. However, in Busic, the government argued that it could elect under which of the two provisions the defendant should be sentenced. 446 U.S. at 403, 100 S.Ct. at 1751.

8 . For example, the Busic Court stated that "§ 924(c) authorizes the imposition of enhanced penalties on a defendant who uses or carries a firearm while committing a federal felony.” 446 U.S. at 399 (emphasis added). In reviewing the text of the statute to determine congressional intent, the Court stated that § 924(c), “[b]y its terms ... tells us nothing about the way Congress intended to mesh the new enhancement scheme with analogous provisions in pre-exist-ing statutes defining federal crimes.” Id. at 405, 100 S.Ct. at 1752 (emphasis added). Rejecting the government's argument that §. 924(c) was actually the more specific statute, the Court stated that "were the Government correct we would be forced to conclude that with regard to firearms cases § 924(c) impliedly repealed all pre-existing enhancement provisions." Id. at 407, 100 S.Ct. at 1753 (emphasis added). Similarly, the Court stated, "it is simply not for this Court to substitute its accommodation between old and new enhancement provisions for the one apparently chosen by Congress.” Id. at 410, 100 S.Ct. at 1755 (emphasis added).

9 . We recognize that our resort to the legislative history is proper only when the statutory language is unclear. Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984); Abreu, 962 F.2d at 1450. The fact that § 924 is entitled “Penalties” and subsection (c) provides that its sentence is in addition to the sentence for the underlying crime while at the same time expressly referring to the underlying crime as one which "may” be prosecuted and to “convictions under this subsection” creates the ambiguity that leads us into the legislative history-

10 .The 1988 amendment to § 924(c) increased the penalty if the firearm is a machine gun, destructive device, or equipped with a silencer; increased the penalty for repeat offenders; and increased the penalty for repeat offenders who use a machine gun, destructive device, or silencer. Anti-Drug Abuse Amendments Act of 1988, Pub.L. No. 100-690, § 6460, 102 Stat. 4181, 4373-74. The 1990 amendment added short barreled rifles and shotguns as warranting a increased penalty, expanded the penalty for repeat offenders who use a destructive device to make it consistent with those who use a machine gun, and eliminated redundant language from the earlier amendment. Crime Control Act of 1990, Pub.L. No. 101-647, §§ 1101, 3527, 104 Stat. 4789, 4829, 4924.

11 . Here, the § 846 conspiracy was alleged as one of the predicates to the § 924(c)(1) unlawful objective of the § 371 conspiracy. Consequently, Mr. Hill’s argument as applied to the facts of this case leads down the same path as amicus’ argument — i.e., that proof of the underlying drug trafficking crime is necessary to sus- . tain a conviction for conspiring to violate § 924(c)(1).