United States v. Roy Lee Johnson

25 F.3d 1335, 1994 U.S. App. LEXIS 14797

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 16, 1994
• Docket: 91-1200, 91-1201
• Status: Published

Opinions

SILER, J., delivered the opinion of the court, in which MERRITT, C.J., KEITH, JONES, MILBURN, BOGGS, SUHRHEINRICH, and DAUGHTREY, JJ., joined. MARTIN, J. (pp. 1338-39), delivered a separate concurring opinion, in which KEITH and JONES, JJ., joined. GUY, J. (p. 1339), also delivered a separate concurring opinion. NELSON, J. (pp. 1339-42), delivered a separate dissenting opinion in which KENNEDY, RYAN, NORRIS, and BATCHELDER, JJ., joined.

SILER, Circuit Judge.

Defendant, Roy Lee Johnson, appeals his jury conviction and consecutive sentences. A panel of this court previously affirmed the conviction in United States v. Johnson, 986 F.2d 134 (6th Cir.1993). We now adopt that decision on all issues set out in the unpublished appendix to the opinion, but we reverse the decision of the district court in finding that the defendant committed two violations of 18 U.S.C. § 924(c) under the circumstances of this case.

In 1989, federal officers executed a search warrant at defendant’s residence in Detroit. In the bedroom, the officers found two firearms and two different types of controlled substances, to-wit, fourteen grams of cocaine and 150 Dilaudid (hydromorphone) tablets.

Defendant was indicted for, and convicted of, five counts of criminal offenses, all arising from what was found in his bedroom. Count 1 charged him with possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); Count 2 charged him with the use of the firearms (rifle- and handgun) in relation to the drug trafficking crime specified in Count 1, in violation of 18 U.S.C. § 924(c); Count 3 charged him with possession with intent to distribute Dilaudid, in violation of 21 U.S.C. § 841(a)(1); Count 4 charged him with a second violation of 18 U.S.C. § 924(c), using the same firearms in relation to the drug trafficking crime charged in Count 3; and Count 5 charged defendant as a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The sentence on Counts 1, 3, and 5 was for 51 months on each count, to run concurrently. However, the sentence on Counts 2 and 4 was for the mandatory minimum five years per count, consecutive to each other, and consecutive to the 51-month sentence imposed on Counts 1, 3, and 5. Thus, the defendant was sentenced to a total of 171 months’ incarceration, plus supervised release.

The narrow question before this court is whether a defendant may be sentenced to two or more consecutive terms for violating 18 U.S.C. § 924(c)(1)¹ by possessing firearms while simultaneously trafficking in two or more controlled substances under 21 U.S.C. § 841.

We decided in United States v. Pope, 561 F.2d 663, 669 (6th Cir.1977), that the simultaneous possession of two distinct controlled substances with intent to distribute can be two offenses and result in consecutive sentences. Other circuits have reached a similar conclusion. See, e.g., United States v. Bonilla Romero, 836 F.2d 39, 47 (1st Cir.1987), cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988); United States v. Dejesus, 806 F.2d 31, 35-37 (2d Cir.1986), cert. denied, 479 U.S. 1090, 107 S.Ct. 1299, 94 L.Ed.2d 155 (1987); United States v. Grandison, 783 F.2d 1152, 1155-56 (4th Cir.), cert. denied, 479 U.S. 845, 107 S.Ct. 160, 93 L.Ed.2d 99 (1986); United States v. Davis, 656 F.2d 153 (5th Cir. Unit B Sept. 1981), cert. denied, 456 U.S. 930, 102 S.Ct. 1979, 72 L.Ed.2d 446 (1982); but see United States v. Martin, 302 F.Supp. 498 (W.D.Pa.1969), aff'd, 428 F.2d 1140 (3d Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 361, 27 L.Edüd 269 (1970).

Inasmuch as the Sentencing Guidelines now provide for grouping or combining of controlled substances for purposes of sentencing, see generally USSG § 2D1.1, and because the offenses under 21 U.S.C. § 841 carry high maximum penalties, the simultaneous possession of controlled substances almost always results in concurrent sentences, as it did in this case, even where the controlled substances are charged in separate counts of the indictment. See USSG § 5G1.2(c). Thus, most, if not all, of the recorded cases on the issue were decided prior to the effective date of the Sentencing Guidelines in 1987. In this case, the defendant did not challenge in the district court the charging or conviction in two separate counts for simultaneous violations of 21 U.S.C. § 841. Therefore, we leave to another occasion the question of whether Pope should be overruled.

The defendant claims that the imposition of consecutive sentences for multiple § 924(c) convictions would violate the Double Jeopardy Clause of the Fifth Amendment to the Constitution under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). However, because we do not reach the question of whether possessing separate controlled substances simultaneously is one predicate offense rather than two, we need not decide whether a problem of multiplicity exists under Blockburger. Cf. United States v. Nabors, 901 F.2d 1351, 1358 (6th Cir.), cert. denied, 498 U.S. 871, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990).

Assuming from Pope that the simultaneous possession of more than one controlled substance constitutes more than one predicate offense, we now consider whether the possession of firearms in conjunction with such predicate offenses can result in consecutive mandatory minimum terms under § 924(c). This court, as well as other circuits, has condoned the use of consecutive mandatory minimum terms under § 924(e)(1). For example, in Nabors, 901 F.2d at 1357-58, we upheld the use of consecutive sentences under § 924(c)(1) when the defendant used two firearms to protect his sales of crack cocaine and to assault a federal agent attempting to search his apartment. In that case, the two predicate offenses were distinct, in that one was an assault and attempted murder of a federal agent, in violation of 18 U.S.C. §§ 111, 1114, and the other was the possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). We declined to follow United States v. Torres, 862 F.2d 1025, 1032 (3d Cir.1988), which held that “although the law allows separate and discrete offenses to be charged, it does not permit separate and discrete sentences to be imposed when Congress did not intend double punishment.” However, in Torres, the government stipulated that only one sentence could be imposed for multiple violations of § 924(c)(2), when the predicate offenses were similar to those in Nabors, that is, assaulting a federal officer and conspiracy to distribute cocaine. Previously, our court in United States v. Henry, 878 F.2d .937, 944 (6th Cir. 1989), left “for another day the question of whether we agree with Torres.” In that case, one of the convictions under § 924(c)(1) was vacated, because the prosecution used the same predicate offense for two separate § 924(e)(1) counts.

In United States v. Clark, 928 F.2d 733, 738 (6th Cir.) (per curiam), cert. denied, - U.S. -, 112 S.Ct. 144, 116 L.Ed.2d 110, and cert. denied, - U.S.-, 112 S.Ct. 240, 116 L.Ed.2d 195 (1991), we held that where the defendant possessed one firearm in his hand and another in a bedroom, he could be charged with two separate § 924(c)(1) • offenses, even though there was only one predicate drug trafficking offense, that is, possession of crack with intent to distribute. However, the district court merged the two convictions under § 924(c)(1) for purposes of sentencing. Inasmuch as the United States was not an appellant in that case, the decision does not uphold the use of merged convictions for sentencing under similar facts. Nevertheless, such a procedure was upheld in United States v. Sims, 975 F.2d 1225, 1235 (6th Cir.1992), cert. denied, - U.S.-, 113 S.Ct. 1315, 122 L.Ed.2d 702 and cert. denied, - U.S. -, 113 S.Ct. 1617, 123 L.Ed.2d 177, and cert. denied, - U.S. -, 113 S.Ct. 1620, 123 L.Ed.2d 179 (1993). Recently, our court has further refined sentencing under the circumstances involving one predicate offense and two firearms by directing the district court to vacate the sentence on the additional firearm count while allowing the first, or the one with the higher penalty, to stand. See United States v. Taylor, 13 F.3d 986, 994 (6th Cir.1994). See also United States v. Freisinger, 937 F.2d 383, 392 (8th Cir.1991) (concurrent sentences authorized for § 924(c)(1) convictions with a single underlying offense); United States v. Chalan, 812 F.2d 1302, 1317 (10th Cir.1987) (vacated one of two § 924(c)(1) convictions where predicate offenses merged).

Our recitation shows that this hair-splitting sometimes leads to absurd results, which “makes it unreasonable to believe that the legislator intended to include the particular act.” Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892). The absurdity is that a defendant with one firearm and one marijuana joint, one rock of crack, and one Dilaudid would receive fifteen years (or forty-five years, under the government’s theory²) for the gun in addition to the sentence on the drug charges, assuming the drugs were possessed with intent to distribute, while a drug kingpin with ten kilos of crack and the same firearm would only receive one five-year sentence, consecutive to his sentence for the drug offense. Therefore, we look to other evidence of congressional intent to determine the resolution of this case. Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 454, 109 S.Ct. 2558, 2566-67, 105 L.Ed.2d 377 (1989).

Congressional intent is not clear with regard to Johnson’s situation. United States v. Rawlings, 821 F.2d 1543, 1546 (11th Cir.) (quoting 114 Cong.Rec. 22231 (1968) (Rep. Poff)), cert. denied, 484 U.S. 979, 108 S.Ct. 494, 98 L.Ed.2d 492 (1987), indicated that Congress’s intention was clear that if an offender “uses his gun and is caught and convicted, he is going to jail. He should further understand that if he does so a second time, he is going to jail for a longer time.” However, the court in Freisinger, 937 F.2d at 391, was not as certain of congressional intent concerning a second offense. For that reason, Freisinger required that the multiple firearms convictions be run concurrently, following the rule of lenity. As stated in Holy Trinity, 143 U.S. at 461, 12 S.Ct. at 512-13, the laws must have a sensible construction. In this case, a sensible construction dictates that possession of one or more firearms in conjunction with predicate offenses involving simultaneous possession of different controlled substances should constitute only one offense under § 924(c)(1), and the sentences under § 924(e)(1) should be for one offense only, see Taylor, 13 F.3d at 994.

Therefore, this court affirms the convictions of the defendant but remands to the district court for resentencing on the firearms charges consistent with this opinion.

1 . 18 U.S.C. § 924(c)(1) provides in 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.... Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried.

2 . In its brief, the government suggests that the defendant in this case should have received twenty-five years (five years for the first § 924(c)(1) conviction and twenty years on the second § 924(c)(1) conviction) consecutive to his drug sentence. See Deal v. United States, - U.S.-, 113 S.Ct. 1993, 124 L.Ed.2d 44 (1993). However, as the government did not appeal that issue, it is not before us. Deal’s facts are different from those in this case, anyway. See Taylor, 13 F.3d at 994 n. 5.