Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS December 12, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-7048
PATRICK WAYNE MCHENRY, a/k/a Savage,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:21-CR-00326-RAW-2) _________________________________
Shira Kieval, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender for the District of Colorado, Denver, Colorado, for Defendant-Appellant.
Luke Rizzo Cascio, Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with him on the brief), Office of the United States Attorney for the Eastern District of Oklahoma, Muskogee, Oklahoma for Plaintiff-Appellee. _________________________________
Before McHUGH, EID, and FEDERICO, Circuit Judges. _________________________________
EID, Circuit Judge. _________________________________ Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 2
A jury found Patrick Wayne McHenry guilty of, among other crimes, violating
18 U.S.C. § 924(c)(1)(A) by carrying a firearm during and in relation to crimes of
violence—namely, a robbery in Indian Country and a carjacking. 1
McHenry now appeals his § 924(c)(1)(A) conviction, arguing the government
presented insufficient evidence that he carried his shotgun during the predicate
robbery offenses because he did not possess or move the shotgun during the “taking”
stage of either offense. We disagree.
Though McHenry may not have had a firearm on his person while committing
the predicate robbery offenses, the evidence, viewed in the light most favorable to the
government, suffices to show that McHenry was constructively “carr[ying]” the
shotgun “during” the continuation of his robberies: while he fled from the scene.
Thus, the evidence sufficiently supports the jury’s § 924(c)(1)(A) guilty verdict.
Accordingly, we affirm.
I.
A.
On the evening of September 11, 2021, B.N. was in a room at a Motel 6 in
Muskogee, Oklahoma, with a man she had recently met, C.J. The two had spent the
day together, drinking alcohol and smoking marijuana.
1 Because “carjacking is a type of robbery,” Jones v. United States, 526 U.S. 227, 235 (1999), we refer to carjacking and federal enclave robbery as “robberies.” 2 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 3
Around ten in the evening, B.N. asked C.J. for a ride home. C.J. declined
because he had been drinking. B.N. then contacted McHenry, whom she had known
for a short time, asking for a ride home from the motel.
McHenry picked up B.N. from the motel in his silver Honda, but instead of
driving her home, he took her to his nearby house. The two entered the house
together. Shortly thereafter, McHenry’s girlfriend, Ashton Clark, arrived, at which
point McHenry attacked B.N. Clark joined in the assault.
At McHenry’s direction, Clark stood over B.N. and held her at gunpoint with
McHenry’s shotgun. McHenry proceeded to bind and gag B.N. McHenry and Clark
then searched B.N. for money and drugs. They failed to find anything.
B.N. told McHenry she had “left everything” at the Motel 6, so he turned his
attention there. R. Vol. I at 585. McHenry forced B.N. into the trunk of his Honda,
shut the trunk, and told Clark to follow him. McHenry then set off for the Motel 6 in
his Honda, with his shotgun sitting on the back floorboard and B.N. in the trunk.
Clark followed McHenry in a separate car.
Once at the Motel 6, McHenry opened the trunk and demanded B.N. tell him
what room she had stayed in. McHenry told her that if she sent him to the wrong
room, he would kill her. B.N. gave McHenry the correct room number.
McHenry left B.N. and his shotgun in the Honda and went with Clark to
B.N.’s old room, where C.J. remained. McHenry knocked and stood outside of the
view of the peephole. C.J. opened the door, thinking it was B.N., and McHenry
pushed his way into the room.
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Inside the room, McHenry threatened to kill C.J., telling C.J. he would “[b]low
[his] head off” and “blow [his] dick off.” Id. at 499. McHenry did not have his
shotgun on him, but he pretended to have a gun. C.J. thought McHenry “might have
had a firearm,” and so he “didn’t want to take a chance” with anything. Id.
McHenry and Clark stripped C.J. naked, stole all of his things—including his
suitcase, clothes, tools, and cell phone—and loaded them into the Honda. They also
took the keys to C.J.’s Subaru. McHenry told C.J. that he would kill him if he “ever
told the cops or reported [the] car stolen.” Id. at 493. McHenry also read C.J.’s
address on his driver’s license and threatened to kill his family if he reported the
Subaru stolen. With C.J.’s (forced) help, McHenry started up the Subaru. 2 McHenry
then returned C.J. to the motel room, where McHenry instructed him to lay down in
the bathroom and told him “not to get up until daylight.” Id. at 496.
With C.J. out of the way, McHenry returned to the Subaru, at which point he
“made [Clark] get in the Honda and drive it,” id. at 584, telling her “to follow him,”
id. at 588. The two then left the Motel 6, with McHenry in C.J.’s Subaru and Clark
following behind in McHenry’s Honda—which still held McHenry’s shotgun and
which now also contained the stolen items. C.J. waited until daybreak to go to a
nearby business and call the police.
2 After B.N. had left earlier in the night, C.J. grew afraid that she might return to steal his Subaru, so he removed and hid two of its fuses. McHenry forced C.J. to come outside and reinstall the fuses. 4 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 5
During the drive away from the Motel 6, B.N. managed to open the Honda’s
trunk from the inside, forcing Clark to pull over to resecure the trunk. When she
could not do so, she called McHenry. McHenry arrived, exited the Subaru, put B.N.
in the back seat of the Honda, and got into the Honda himself. At this point,
McHenry’s shotgun sat on the front passenger floorboard of the Honda. McHenry
drove the Honda away, along with B.N. and the shotgun; Clark switched over to the
Subaru and followed. After driving for some time, McHenry called Clark and
instructed her to pull over, at which point he took the keys to the Subaru and told
Clark he would contact her in three hours. McHenry left the Subaru where it was,
and again set off in the Honda with B.N. inside.
McHenry drove B.N. to a house in Braggs, Oklahoma, where he confined B.N.
to a shed on the property. After over a day in the shed, B.N. escaped and had a
neighbor call 911. Law enforcement recovered C.J.’s things from the Honda and the
house near the shed.
The same day, McHenry and Clark were arrested at the Tulsa Inn and Suites.
Law enforcement recovered the shotgun from a duffle bag in the hotel room and
found C.J.’s Subaru parked outside.
B.
On May 24, 2022, a federal grand jury returned an indictment charging
McHenry with five crimes: (1) conspiracy to commit kidnapping, in violation of
18 U.S.C. § 1201(c); (2) kidnapping, in violation of 18 U.S.C. §§ 2 and 1201(a)(l);
(3) carjacking, in violation of 18 U.S.C. § 2119; (4) robbery in Indian Country, in
5 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 6
violation of 18 U.S.C. §§ 2, 2111, 1151, and 1152; and (5) using and carrying a
firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 2
and 924(c)(l)(A)(i).
Counts 3 and 4—carjacking and robbery in Indian Country—were the “crime
of violence” predicates for the § 924(c)(1)(A)(i) charge in Count 5. Both statutes
criminalize “tak[ing]” property “from the person or presence of another” “by force
and violence” or “by intimidation.” 18 U.S.C. §§ 2111, 2119.
McHenry’s case proceeded to trial. At the close of the government’s evidence,
he moved for a judgment of acquittal under Federal Rules of Criminal Procedure
Rule 29. Particularly relevant here, McHenry argued that “nobody testified that there
was a gun on [him] at all during the time at the Motel 6,” only that there was a
shotgun inside the Honda that Clark “drove off in.” R. Vol. I at 823. Thus, McHenry
argued, there was insufficient evidence that he used or carried a gun “during and in
relation to” the robberies at the Motel 6. The government responded that the
evidence “that the shotgun was in the Honda and specifically the defendant brought
the shotgun to the Motel 6 when they completed their robbery” was sufficient to
sustain a § 924(c)(1)(A) conviction. Id. at 825.
The district court denied McHenry’s Rule 29 motion, and the defense did not
present any additional evidence. The jury ultimately found McHenry guilty on all
charges, including violating § 924(c)(1)(A). By special interrogatory, the jury
indicated that it found McHenry guilty of carrying (but not using) a firearm during
the robberies. The district court imposed the mandatory consecutive five-year
6 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 7
sentence required by the § 924(c)(1)(A) conviction, for a total sentence of thirty-five
years’ imprisonment. McHenry timely appealed.
II.
On appeal, McHenry renews his trial argument that there was insufficient
evidence for the jury to convict him under § 924(c)(1)(A) because he did not carry a
firearm during the robberies.
“We review sufficiency of the evidence claims de novo.” CGC Holding Co. v.
Hutchins, 874 F.3d 1201, 1209 (10th Cir. 2020). In examining a sufficiency-of-the-
evidence challenge, “we review the entire record in the light most favorable to the
government to determine whether the evidence is such that a reasonable jury could
find the defendant guilty beyond a reasonable doubt.” United States v. Sapp, 53 F.3d
1100, 1103 (10th Cir. 1995) (quotation marks omitted) (quoting United States v.
Dirden, 38 F.3d 1131, 1142 (10th Cir. 1994)). We must affirm if “any rational trier
of fact could have found the essential elements of the crime . . . beyond a reasonable
doubt.” United States v. Emmons, 24 F.3d 1210, 1217 (10th Cir. 1994) (quotation
marks omitted) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
III.
18 U.S.C. § 924(c)(1)(A) provides that “any person who, during and in relation
to any crime of violence . . . for which the person 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 . . . be sentenced to a term of imprisonment of
not less than 5 years.” “To sustain a conviction under 18 U.S.C. § 924(c)(1), the
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government must prove three elements: (1) the defendant committed the underlying
crime; (2) the defendant ‘used’ or ‘carried’ a weapon; and (3) the use or carriage of
the weapon was ‘during and in relation to’ the [underlying crime].” United States v.
Lampley, 127 F.3d 1231, 1240 (10th Cir. 1997) (quoting United States v. Richardson,
86 F.3d 1537, 1548 (10th Cir. 1996)).
On appeal, McHenry does not contest that he committed the underlying
crimes. Accordingly, the only question is whether there is sufficient evidence that he
“carried” the shotgun “during” the robberies. We find that there is.
Section 924(c)(1)’s “carries” prong contains “two elements: possession of the
weapon through the exercise of dominion or control; and transportation or movement
of the weapon.” United States v. Martinez, 912 F.2d 419, 420 (10th Cir. 1990); see
also United States v. Durham, 139 F.3d 1325, 1335 (10th Cir. 1998). “Carrying”
does not only refer to carrying a weapon on one’s person. In Muscarello v. United
States, the Supreme Court held that a person “carries a firearm” under § 924(c)(1)
when the “person [ ] knowingly possesses and conveys firearms in a vehicle,
including in the locked glove compartment or trunk of a car, which the person
accompanies.” 524 U.S. 125, 126–27 (1998). There is thus no question that
McHenry “carrie[d]” the shotgun in the Honda while he drove the Honda from his
house to the motel with his shotgun sitting on the back floorboard.
Following from Muscarello, we have also held that a person “carries a
firearm” within the meaning of § 924(c)(1) when the person indirectly—or
8 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 9
constructively—possesses and conveys a firearm in a vehicle through a subordinate
who, at the person’s orders, drives the vehicle. 3 In United States v. Lindsey, we held
that the defendant “carrie[d]” firearms when the defendant’s subordinate, “who did
whatever [the d]efendant told him to do,” drove a U-Haul filled with firearms inside,
and the defendant followed in a separate vehicle. 389 F.3d 1334, 1338–39 (10th Cir.
2004) (internal quotation marks omitted). On the “possession” element of “carries,”
we held that “although [the defendant was] not in actual possession of the firearms,”
the defendant “maintained constructive possession of the firearms while [the
subordinate] transported them in the U-Haul because he exercised dominion and
control over [the subordinate] and the U-Haul.” Id. at 1339. And on the “transports”
element, we held that the defendant “transported the firearms in the U-Haul, even
though he was not physically present inside the vehicle,” because he “paid for the
U-Haul, directed [the subordinate] to drive the U-Haul, and insisted the U-Haul travel
in tandem with him at all times.” Id. We further stressed that the defendant
“undoubtedly went along with the U-Haul as he and his cohorts traveled.” Id.
(internal quotation marks omitted).
This case is not meaningfully distinguishable from Lindsey. Here, Clark
testified that, as McHenry was getting into the Subaru to leave the Motel 6, McHenry
“made [her] get in the Honda and drive it,” and he “told [her] to follow him.”
R. Vol. I at 584, 588. The two then drove away from the Motel 6 together. All
3 We note the jury was instructed on constructive possession. 9 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 10
along, Clark followed McHenry’s orders and looked to him for guidance. For
instance, during their drive away from the motel, Clark called McHenry as soon as
B.N. managed to open the trunk and Clark was unable to close it. And later, when
Clark had since switched cars and was driving the Subaru, she pulled over, left the
Subaru, and then split away from McHenry when McHenry called her and instructed
her to do so. On these facts, just like in Lindsey, a rational juror could conclude that
McHenry “exercised dominion and control over [Clark] and the [Honda]” during the
time McHenry drove the Subaru, and led Clark in the Honda. Lindsey, 389 F.3d
at 1339. 4
For these reasons, McHenry was “carr[ying]” the shotgun within the meaning
of § 924(c)(1) both while he drove the Honda, himself, and while he drove the
Subaru and Clark followed in the Honda at his direction. Because McHenry
“carried” the shotgun, the question then becomes whether any of that carriage
occurred “during” either of the robberies under § 924(c)(1).
“A firearm is carried ‘during and in relation to’ the underlying crime, when the
‘defendant avails himself of the weapon and . . . the weapon plays an integral role in
the underlying offense.’” United States v. Shuler, 181 F.3d 1188, 1190 (10th Cir.
4 One difference between this case and Lindsey is that, where the defendant in Lindsey “paid for the U-Haul,” McHenry did not own or pay for the Honda. Clark, however, testified that McHenry was loaned the Honda but “never returned it”—and was not going to return it—because McHenry accused Clark of having an affair with the Honda’s true owner. R. Vol. I at 580–81. 10 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 11
1999) (ellipsis in original) (brackets omitted) (quoting Lampley, 127 F.3d at 1240).
To show this, the government “must establish a nexus between the carriage of the
firearm and the underlying offense.” Id. The “evidence must support a finding that
the defendant intended the weapon to be available for use during the crime of
violence.” Id. (brackets omitted) (quoting Richardson, 86 F.3d at 1548).
McHenry begins with the premise that a firearm is “‘carrie[d]’ ‘during . . .
a[] crime of violence’” only “if the gun is carried contemporaneously with the
commission of at least some of the conduct that constitutes an element of the
predicate offense.” Reply Br. at 5 (alterations in original). Building from there,
McHenry contends that, by only carrying the shotgun in his Honda to and from the
motel, and not carrying it into the motel room or while acquiring C.J.’s Subaru, he
did not carry the firearm “during” his robberies under § 924(c)(1). McHenry’s
argument homes in on the word “takes”—and the lack of the phrase “and carries
away”—in the predicate robbery statutes. See 18 U.S.C. §§ 2111, 2119. McHenry
says that each of his two predicate robbery offenses “starts and ends with a violent
taking,” and to have carried a firearm “during” those offenses under § 924(c)(1), he
reasons, he must have “both possesse[d] and move[d] a gun while engaged in that
violent taking.” Aplt. Br. at 20–22.
We have already rejected McHenry’s narrow “during” argument. In United
States v. Brown, 400 F.3d 1242 (10th Cir. 2005), the government charged a defendant
under § 924(c)(1) with carrying a firearm during and in relation to a drug trafficking
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offense, specifically, “‘manufacturing methamphetamine,’ in violation of 21 U.S.C.
§ 841(a)(1).” Id. at 1247. The jury convicted, and we affirmed.
The evidence showed that the defendant had manufactured methamphetamine
at a criminal partner’s motor home and trailer. Id. We held that the defendant
“carried” a firearm within the meaning of § 924(c)(1) because the firearm was in the
front seat of another partner’s van that the defendant had driven on the day of his
arrest. See id. at 1247–48.
The defendant maintained that there was no evidence that he “carrie[d]” the
firearm “during” manufacturing methamphetamine, “because he was not actually
manufacturing methamphetamine in [the] van while he was ‘carrying’ the [firearm],
and he was not actually ‘carrying’ the [firearm] in [the] motor home or trailer when
he was manufacturing methamphetamine.” Id. at 1249. The defendant argued that
the term “manufacture” in the predicate statute “does not include mere possession of
ingredients that might be used to manufacture the controlled substance,” which is the
most that the defendant did while driving the van and “carrying” the firearm inside.
Id. In essence, the defendant’s argument was that he would have already completed
the elements of the predicate “manufactur[ing]” offense in one location before he
would “carr[y]” the firearm in the van, and he would stop “carr[ying]” the firearm in
the van before he would re-start and re-complete the elements of the predicate
“manufactur[ing]” offense in the second location.
We rejected the defendant’s argument and held there was sufficient evidence
that he carried the firearm “during” the crime of manufacturing methamphetamine.
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In so holding, we looked beyond the predicate crime’s statutory text and elements
and focused more broadly on the body of the predicate offense as a logical whole.
We treated the defendant’s underlying statutory crime as a “continuing offense,”
even though the underlying statute itself did not indicate as much. Id. at 1249–50.
That statute, by its terms, made (and still makes) it a crime “to manufacture . . . a
controlled substance,” 21 U.S.C. § 841(a)(1), which most naturally is read to
criminalize a single event in time—the manufacturing itself. 5 Put differently, driving
around with ingredients that could be used to manufacture methamphetamine, but not
actually “manufactur[ing]” methamphetamine, would not itself, as McHenry himself
argues, constitute “the commission of at least some of the conduct that constitutes an
element of the predicate [§ 841(a)(1)] offense.” Reply Br. at 5.
Nevertheless, we viewed this statutory crime as a “continuing offense” for
§ 924(c)(1) “during” purposes, observing that the evidence established “not only that
[the defendant] manufactured methamphetamine, but that [his] methamphetamine
manufacture was a continuous and ongoing operation” for over two weeks. Brown,
400 F.3d at 1249–50. We held that the operative question for whether the § 924(c)(1)
5 In relevant part, “manufacture” means the production, preparation, propagation, compounding, or processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of such substance or labeling or relabeling of its container. Id. § 802(15). 13 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 14
conviction could stand, therefore, was “not whether the evidence demonstrate[d] the
[firearm] was directly connected to any particular drug transaction or point in the
methamphetamine production process, but whether the firearm was sufficiently
connected to the ‘continuing offense’ as a whole.” Id.
Thus, we held that the carriage occurred “during” the “continuing offense.”
Id. at 1250. We explained that the evidence before the jury supported the inference
that the defendant “‘carried’ the gun throughout the period alleged in the indictment
in connection with his road trips out of state to obtain the [ingredients]” to
manufacture methamphetamine. Id. That was so because the “trips occurred ‘during’
the ongoing and underlying crime; indeed, they were essential to the maintenance of
[the defendant’s] continuous methamphetamine manufacturing enterprise.” Id.
The upshot of Brown is that when we assess whether the carriage of a firearm
occurs “during” an underlying crime within the meaning of § 924(c)(1), the
underlying crime does not necessarily end right when the final element of that crime
is satisfied. Restated, carriage need not occur at the precise moment that the
defendant completes the last statutory element of a predicate crime for the carriage to
have occurred “during” that predicate crime under § 924(c)(1). In Brown, none of
the defendant’s driving around in the van with the ingredients itself constituted any
part of the offense of “manufactur[ing]” methamphetamine under § 841(a)(1). Still,
we held that the driving with a weapon could be considered as occurring “during” the
predicate crime for purposes of § 924(c)(1).
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Under Brown, if the facts and law show that a predicate crime “was ongoing
and continuous,” a § 924(c)(1) conviction may lie if carriage occurred “during” that
“ongoing and underlying crime.” 400 F.3d at 1249–50. As the Third Circuit
similarly stated—in a predicate-crime robbery case no less—§ 924(c)(1) does not
require “look[ing] only at the offense under [the predicate criminal statute] to
determine whether [a defendant] carried the gun ‘during’ the crime,” rather, it
“requir[es] a common sense, temporal approach to the specific facts.” United States
v. Williams, 344 F.3d 365, 374 (3d Cir. 2003).
Brown therefore dooms McHenry’s categorical “during” argument. Again,
just as the Brown defendant did with the word “manufacture” in the predicate statute
there, McHenry argues that the operative word “take[]” in the two predicate robbery
statutes here, 18 U.S.C. §§ 2111, 2119, required him to have carried a firearm
“during” a “tak[ing]” to fall within § 924(c)(1)’s ambit. But even spotting McHenry
that, as a substantive matter of his underlying crimes, the robberies were “committed
at the precise moment” of a forcible taking, Aplt. Br. at 20 (cleaned up), Brown
indicates that we need not mechanically graft that narrow time frame onto
§ 924(c)(1)’s “during” inquiry. See 400 F.3d at 1249–50.
Finally, if there were any doubt, applying Brown to McHenry’s robberies puts
us in good company: “a number of courts have held that, in the context of § 924(c), a
bank robbery does not necessarily end at the point along the time line at which all of
the elements of the offense have been established.” United States v. Cecil, 615 F.3d
678, 693 (6th Cir. 2010) (collecting cases). And cases where federal bank robbery
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under § 2113(a) was the predicate crime for § 924(c)(1) liability are fully apt here.
As the Supreme Court has recognized, that statute’s text tracks that of the carjacking
statute (§ 2119) and the robbery in Indian Country statute (§ 2111). See Jones v.
United States, 526 U.S. 227, 235–36 & n.4 (1999). Those statutes all, in pertinent
part, criminalize only “tak[ing]” property. See 18 U.S.C. §§ 2111, 2113(a), 2119.
The federal bank robbery and robbery in Indian Country statutes also both served as
models for the federal carjacking statute. See Jones, 526 U.S. at 235–36 & n.4.
IV.
Because McHenry’s robberies are “continuing offenses” for § 924(c)(1)(A)
“during” purposes, the final question is whether the offenses continued throughout
McHenry’s flight from the Motel 6. They did. Thus, the evidence, viewed in the
light most favorable to the government, established that McHenry was “carr[ying]”
the shotgun “during” the time he fled the scene of the robberies. This legally
amounts to a § 924(c)(1)(A) violation.
Robbery is generally viewed as a continuing offense that continues throughout
flight from the scene. We have held that “the uniform generic definition of robbery
incorporates the continuing offense theory.” United States v. Garcia-Caraveo, 586
F.3d 1230, 1236 (10th Cir. 2009). Representative of that theory, the Model Penal
Code provides that “[a]n act shall be deemed ‘in the course of committing a theft’ if
it occurs in an attempt to commit theft or in flight after the attempt or commission.”
Model Penal Code § 222.1(1) (A.L.I. 2024) (emphasis added).
16 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 17
To that point, in United States v. Burton, 121 F. App’x 318 (10th Cir. 2005)
(unpublished), we affirmed a § 924(c)(1)(A) conviction for carrying a firearm
“during” a federal bank robbery where the defendant “did not carry the weapon into
the bank,” because the defendant “possessed a gun while obviously fleeing the
robbery,” and “escape or flight is a phase of a robbery.” Id. at 323. To be sure,
Burton is a non-precedential decision. But Burton’s persuasiveness grows when we
consider that at least the Third, Sixth, Seventh, and Eighth Circuits have adopted the
same principle: that flight or escape from a bank robbery “is part of the robbery and
occurs ‘during’ it” under “the language of 18 U.S.C. § 924(c)(1)(A).” United States
v. Reichow, 416 F.3d 802, 805 (8th Cir. 2005) (citing United States v. Pate, 932 F.2d
736, 738 (8th Cir. 1991)); accord Williams, 344 F.3d at 375 (3d Cir.) (“[F]light may
be considered a part of a bank robbery under § 924(c).”); United States v. Andrews,
442 F.3d 996, 1002 (7th Cir. 2006) (“Escape is considered part of a robbery and the
use of a firearm during an escape is a violation of 18 U.S.C. § 924(c).”); see also
Cecil, 615 F.3d at 693 (6th Cir.) (collecting bank robbery cases and “[a]pplying this
principle” in the Hobbs Act robbery context). And for the reasons explained above,
cases like these dealing with § 2113(a) federal bank robbery as a predicate crime
apply with full force to the robbery in Indian Country and carjacking predicates at
issue here.
The government’s evidence sufficed to prove that McHenry was fleeing from
the scene of his robberies in the stolen Subaru while also constructively carrying the
shotgun in the Honda. At least for the first few moments that McHenry drove the
17 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 18
stolen Subaru away from the Motel 6, with C.J.’s other items in tow in the
accompanying Honda, he was engaged in flight from the scene “during” the
robberies. This follows directly from our decision in Burton. There, we held that the
defendant was “obviously fleeing the robbery” when he “had the firearm on his
person within inches of the robbery proceeds, within a few blocks of the robbery, and
not less than a few minutes after he left the bank premises.” 121 F. App’x at 323
(emphasis added). Based on the carriage during that flight, Burton held, “the jury
could reasonably find [the defendant] carried a gun in violation of § 924(c).” Id.
The early stages of McHenry driving away in the Subaru, with Clark and the loot-
filled Honda following close behind, track dispositively closely—in terms of
temporal and spatial proximity to the robbery scene and proceeds—to what we
deemed “obvious[]” flight, and thus “during” the robbery, in Burton.
What’s more, McHenry’s conduct during the robberies was calculated to aid in
his flight, further linking the underlying robberies to the flight. While robbing C.J.,
McHenry “told [C.J.] he was going to blow [C.J.’s] brains out and kill [him] if [he]
ever told the cops or reported [his Subaru] stolen.” R. Vol. I at 493. Then, right
before leaving, McHenry “read [C.J.’s] address off to [C.J.] and said that [he] was
going to kill [C.J.’s] family if [C.J.] reported [the Subaru] stolen.” Id. at 494–95.
McHenry also took C.J.’s phone, made C.J. lay down on the bathroom floor naked,
and “told [C.J.] not to get up until daylight.” Id. at 496. From the jury’s perspective,
these threats could conceivably have contributed to C.J. waiting until the next day to
report the robberies. This is particularly so given that the jury learned that C.J. knew
18 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 19
he could have easily gone to the Motel 6’s main office and used a phone to report the
robberies at any time. Based on McHenry’s threats, which certainly contemplated a
future flight, and which may have enabled that flight, a rational jury could conclude
that McHenry’s “flight” from the scene was “during” his underlying robberies within
the meaning of § 924(c)(1).
And—the final piece of this puzzle—during the time McHenry was fleeing the
robberies in the Subaru, he was constructively “carr[ying]” the shotgun in the Honda.
As discussed above, McHenry “exercised dominion and control over [Clark] and the
[Honda]” by “direct[ing] [Clark] to drive the [Honda]” and “insist[ing] the [Honda]
travel in tandem with him” as he left the motel. Lindsey, 389 F.3d at 1339.
Therefore, the evidence, when viewed in the light most favorable to the
government, reflects at least some temporal overlap between McHenry’s flight and
his constructive carriage of the shotgun. Accordingly, there was sufficient evidence
that McHenry “carried” a firearm “during” his “ongoing and underlying” robberies.
See Brown, 400 F.3d at 1250. That is sufficient evidence to sustain McHenry’s
§ 924(c)(1)(A) conviction.
V.
Finally, we acknowledge that the government’s appellate brief primarily
defends the jury’s verdict by arguing that McHenry’s carriage of the firearm to the
Motel 6—i.e., the time before the “tak[ings]”—was “during” the robberies. See
Aple. Br. at 13–14 (arguing that “the robber[ies] began when [McHenry] . . . started
driving to the Motel 6 with his shotgun within reach, and with his accomplice
19 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 20
following in tandem at his direction”). Still, our decision to affirm based on
McHenry’s post-taking carriage is well supported by a theory that the government put
forth at trial.
We can affirm a criminal conviction based on any theory presented to the jury.
See Chiarella v. United States, 445 U.S. 222, 236 (1980). Here, the government has
consistently—from trial, to briefing, to oral arguments—advanced a “post-taking”
carriage theory along with the “pre-taking” theory.
At trial, the government argued to the jury that McHenry transporting the
shotgun away from the Motel 6 to “the house in Braggs, and then back up to Tulsa,”
showed that he violated § 924(c)(1)(A). R. Vol. I at 894. It even argued that
McHenry “simply retrieving [the gun] from the Honda” away from the Motel 6 was
“carr[ying] the [gun] during and in relation to [the] carjacking and robbery.” Id.
at 895. And, at oral argument on appeal, the government clarified that it “has never
abandoned the . . . theory that the robbery is still continuing while they escape” and
that carriage during that escape—i.e., post-“tak[ing]”—suffices to affirm. Oral Arg.
Audio at 29:27–30:00. During oral argument, the government further cited to United
States v. Von Roeder, 435 F.2d 1004 (10th Cir. 1970), for the proposition that it is
“well known” that “the escape from the robbery is part of the robbery crime.” Id.
at 28:50–29:15.
McHenry, for his part, clearly recognized that the government had advanced
this post-taking theory below. In response, McHenry devoted an entire section of his
opening brief on appeal to arguing that “[t]he statutory robbery offenses charged in
20 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 21
this case do not include a separate ‘escape phase.’” Aplt. Br. at 22–25. He sought to
clarify that Von Roeder, the case that the government later cited at oral argument,
“applies only to robbery offenses with asportation elements, not to statutory robbery
offenses like federal carjacking and federal enclave robbery that lack the element of
asportation.” Id. at 24.
Accordingly, our decision that the “post-taking” carriage theory supports
McHenry’s § 924(c)(1)(A) conviction does not require us to “cherry-pick facts”
presented to the jury and apply them to a different carriage theory. Ciminelli v. United
States, 598 U.S. 306, 316–17 (2023). Our decision rests on the same carriage theory that
the government presented to the jury below: that McHenry carried his weapon for at
least some period of time post-taking. See R. Vol. I at 894 (“He transported [the firearm]
from . . . Motel 6 [to] the house in Braggs.”). As such, affirming McHenry’s conviction
on the post-taking theory does not require us to “assume . . . the function . . . of a jury.”
Ciminelli, 598 U.S. at 317. Instead, we need only apply the government’s theory, which
the government presented to the jury, to the facts of this case to uphold McHenry’s
§ 924(c)(1)(A) conviction based on his post-taking flight with a firearm.
VI.
For the foregoing reasons, we AFFIRM.
21 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 22
No. 24-7048, United States v. McHenry FEDERICO, Circuit Judge, joined by McHUGH, Circuit Judge, concurring.
Following trial, a jury convicted Patrick McHenry of multiple offenses,
including for violating 18 U.S.C. § 924(c)(1)(A) for carrying a firearm in
connection with a predicate crime of violence. We affirm that conviction today
based on the theory that McHenry constructively possessed a shotgun while
fleeing the scene of his predicate crime, a theory that stems from United States
v. Lindsey, 389 F.3d 1334 (10th Cir. 2004). I agree with the majority that the
facts here are materially indistinguishable from the facts in Lindsey. In
Lindsey, we affirmed a similar § 924(c)(1)(A) conviction because the defendant
maintained constructive possession over his firearm by directing a subordinate
to transport the firearm in a U-Haul truck while the defendant rode in a
different vehicle close to the U-Haul. Id. at 1338–39. Here, as McHenry fled
the scene in a stolen car, he likewise instructed someone else (his girlfriend) to
follow him in a separate car where the shotgun was contained. As such,
McHenry constructively possessed the shotgun, and he possessed it while
fleeing.
Had the Government made the argument that the majority now adopts,
this would be a much more straightforward case. But the Government did not,
so affirming on this basis requires working through tricky waiver questions. I
concur because I ultimately conclude that the Government has not waived the Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 23
winning argument. I write separately to emphasize that the law governing
waivers in these circumstances is underdeveloped, making this case a much
closer call than the majority opinion lets on.
Two types of potential waiver are in play. The first is appellate waiver.
In its appellate brief, the Government does not cite Lindsey, nor does it argue
that McHenry carried a firearm while fleeing the scene. It was not until oral
argument, and only when prompted by the panel, that the Government first
pressed its flight argument on appeal. I am not too concerned about this first
type of waiver – we have long said that we have the discretion to affirm on any
basis supported by the record, even on a basis not presented on appeal. United
States v. Margheim, 770 F.3d 1312, 1325 (10th Cir. 2014) (quoting Richison v.
Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011)).
It is the second type of waiver that I find more challenging. For ease of
reference, I will refer to it as trial waiver. It arises from the Government’s
failure to argue to the jury at trial that McHenry constructively possessed the
shotgun during his flight when he instructed his girlfriend to follow him in the
car that contained the shotgun.
Unlike appellate waiver, we do not have discretion when it comes to trial
waiver. The Supreme Court has told us that we “are not permitted to affirm
convictions on any theory [we] please simply because the facts necessary to
support the theory were presented to the jury.” McCormick v. United States,
2 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 24
500 U.S. 257, 270 n.8 (1991). So, the theory upon which we affirm a conviction
must have been presented to the jury. This is because a court that adopts an
unpresented theory improperly substitutes itself as factfinder in place of the
jury. To satisfy itself that an unpresented theory supports conviction, the court
would need to review the evidence in the first instance, which includes making
inferences and findings that the jury was never asked to make. See Ciminelli
v. United States, 598 U.S. 306, 316–17 (2023) (“[T]he Government asks us to
cherry-pick facts presented to a jury charged on the right-to-control theory and
apply them to the elements of a different wire fraud theory in the first instance.
In other words, the Government asks us to assume . . . the function . . . of a
jury. That is not our role.”). Put differently, the Government cannot convince a
jury to convict on legally indefensible grounds only to then turn around and
ask an appellate court to salvage its case by bootstrapping a valid theory, never
argued to the jury, onto the jury’s verdict. 1
Applying McCormick and Ciminelli, we have no discretion to excuse this
potential trial waiver. However, it is somewhat unclear whether or how trial
waiver applies in these circumstances. McCormick’s rule that appellate courts
cannot affirm “on any theory they please” seems to center trial waiver on how
1 This would likely also circumvent the Government’s burden of proof, as
appellate review is less searching than the reasonable doubt standard a jury was tasked with applying if the Government had presented an appropriate theory at trial. 3 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 25
the Government argued its theory of the case to the jury. 500 U.S. at 270 n.8.
Yet, in the immediately preceding sentence, McCormick says that a defendant
is denied his jury right “when an appellate court retries a case on appeal under
different instructions and on a different theory than was ever presented to the
jury.” Id. (emphasis added). This suggests that trial waiver depends on both
failure to present a particular theory of the case and failure to instruct the jury
on that theory. Ciminelli, too, focused on the jury instructions. There, the
Supreme Court declined to affirm on an alternative theory in part because the
jury had not been charged on that theory; rather, the jury had been charged on
a right-to-control theory that the Supreme Court had rejected. Ciminelli, 598
U.S. at 316–17. McCormick and Ciminelli thus leave open some questions
about the scope of trial waiver and how we should apply it.
Absent more definitive guidance, I fall back on the well-worn principle
that we do not reverse jury verdicts unless no reasonable juror could have
reached the challenged verdict. United States v. Shepard, 396 F.3d 1116, 1119
(10th Cir. 2005) (citation omitted). In this case, there was enough, barely, for
a reasonable juror to convict on the theory of constructive possession during
flight, which is the theory of affirmance on appeal.
The Government argued to the jury that McHenry possessed the shotgun
“for the entire relevant period,” which necessarily included the moments when
McHenry fled from the hotel and his criminal conduct continued. R. I at 894.
4 Appellate Case: 24-7048 Document: 75-1 Date Filed: 12/12/2025 Page: 26
And the district court instructed the jury on constructive possession, including
the fact that McHenry could have constructively possessed the firearm
“through another person.” Id. at 248. Combined with the testimony from
McHenry’s girlfriend that McHenry did in fact direct her to follow in a separate
vehicle with the shotgun, the jury had all the puzzle pieces needed to convict
on the theory that the majority opinion adopts. To be sure, the Government
never put the pieces together for the jury by specifically arguing constructive
possession during flight. But a rational juror could have finished the puzzle
without the Government’s help. I therefore respectfully concur.