United States v. Shaun Hurley

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 2021
• Docket: 19-10064
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10064

Plaintiff-Appellee, D.C. No. 3:17-cr-08211-DLR-1 v.

SHAUN HURLEY, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding

Submitted March 3, 2021** Phoenix, Arizona

Before: HAWKINS and BUMATAY, Circuit Judges, and CARDONE,*** District Judge.

Shaun Hurley appeals his two convictions and sentences for use of a firearm

in furtherance of a crime of violence under 18 U.S.C. § 924(c).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. We review the jury verdict form, the charging of multiple § 924(c) offenses,

and the imposition of conditions on supervised release for plain error, because

Hurley did not object below. See United States v. Espino, 892 F.3d 1048, 1051 (9th

Cir. 2018); United States v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007); United

States v. Wolf Child, 699 F.3d 1082, 1089 (9th Cir. 2012). We review de novo the

district court’s imposition of consecutive § 924(c) sentences because it involves a

question of law and was objected to below. See United States v. Hoyt, 879 F.2d 505,

511 (9th Cir. 1989), amended, 888 F.2d 1257 (9th Cir. 1989). We affirm.

1. The district court did not commit plain error by using a verdict form that

did not require the jurors to choose between “brandishing” or “discharging” the

firearm. The “use,” “brandishing,” and “discharge” of a firearm may all occur in the

same offense, and the highest mandatory minimum would apply under § 924(c).

See, e.g., Abbott v. United States, 562 U.S. 8, 13 (2010). Section 924(c)(1)(A)

conjunctively lists the “brandish[ing]” and “discharge[]” mandatory minimums,

confirming that Congress did not intend for the crimes to be mutually exclusive. See

18 U.S.C. § 924(c)(1)(A)(ii)-(iii). Here, the special verdict form required jurors to

record whether Hurley “brandished” and/or “discharged” a firearm. The jurors could

have picked either, neither, or both. The jury unanimously found that Hurley both

brandished and discharged a firearm. There is nothing inconsistent with a jury

finding that both occurred in the same offense.

2 2. The district court did not plainly err by permitting the government to bring

two § 924(c) charges. While Hurley argues it was error to allow multiple convictions

under §924(c) for a single use of a firearm, we recently concluded that a defendant

who “fired four shots” at Deputy U.S. Marshals “in quick succession” was properly

charged with four separate § 924(c) counts. See United States v. Voris, 964 F.3d

864, 870, 873 (9th Cir. 2020) (“Here Voris used his gun four separate times when

he fired four shots toward the door—he pulled the trigger four times, in four slightly

different directions, resulting in four separate discharges[.]”). We held that each

discharge of the firearm constituted a separate “use” under § 924(c), even though the

shots were “quickly fired.” Id. at 873. Here, the firearm was first “discharged” near

the victim’s head as he was being assaulted, and second the firearm was

“brandish[ed]” at the same victim while Hurley stole the victim’s car. These two

“uses” of the firearm are separate offenses under § 924(c), and Hurley’s conviction

on two separate counts was not plain error.

3. The district court did not plainly err in imposing consecutive sentences for

Hurley’s two § 924(c) charges. Section 924(c)(1)(D)(ii) mandates that a § 924(c)

sentence run consecutively to any other § 924(c) sentence. See United States v.

Zepada, 792 F.3d 1103, 1116 (9th Cir. 2015) (en banc). As discussed above, Hurley

was convicted of two separate § 924(c) violations “tied to . . . different predicate

3 offense[s].” See id. The district court therefore had no discretion to impose Hurley’s

two § 924(c) sentences concurrently.

4. The district court did not commit plain error by imposing Standard

Condition 12, Standard Condition 7, and Special Condition 4. First, Standard

Condition 12 is not unconstitutionally vague. This condition mirrors the language

used by the Sentencing Commission in U.S.S.G. § 5D1.3(c)(12), and imposing it

was not plain error. See United States v. Magdirila, 962 F.3d 1152, 1158–59 (9th

2020) (suggesting district court might cure constitutional deficiency by adopting

language similar to that used in U.S.S.G. § 5D1.3(c)(12)).

Second, Standard Condition 7 and Special Condition 4 are not substantively

unreasonable. Both conditions are “reasonably related to the goal of deterrence,

protection of the public, or rehabilitation of the offender.” United States v. Weber,

451 F.3d 552, 558 (9th Cir. 2006); see 18 U.S.C. § 3583(d). Standard Condition 7

requires Hurley to either “work full time” or “try to find full-time employment.”

Hurley does not show that he is incapable of seeking employment, nor does he show

that the condition is an unfair burden on a fundamental liberty interest. See United

States v. Vega, 545 F.3d 743, 748–49 (9th Cir. 2008). And, finally, Special

Condition 4 requires Hurley to participate in substance abuse treatment and

contribute to the cost of that treatment as determined by his probation officer. Hurley

4 does not cite any case to support his objection to Special Condition 4, nor does he

offer any reason why it would be impossible for him to meet this condition.

AFFIRMED.