GREGORY JONES, PETITIONER V. UNITED STATES OF AMERICA No. 90-7221 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. A4818-A4828) is reported at 911 F.2d 551. JURISDICTION The judgment of the court of appeals was entered on September 7, 1990. A petition for rehearing was denied on November 28, 1990. The petition for a writ of certiorari was filed on February 26, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner properly received an enhanced penalty under 18 U.S.C. 924(c) for his second firearms conviction, when the second firearms conviction occurred in the same prosecution as his first conviction. STATEMENT Following a jury trial in the United States District Court for the Northern District of Georgia, petitioner was conviced on two counts of armed bank robbery, in violation of 18 U.S.C. 2113(a) and (d); two counts of using a firearm in the commission of a crime of violence, in violation in 18 U.S.C. 924(c); and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. 922(g). He was sentenced to a total of 451 months in prison, consisting of 151 months' imprisonment on the bank robbery counts to be served concurrently with a 60-month term of imprisonment on the felon-in-possession sentence, a consecutive 5-year term of imprisonment for his first offense under 18 U.S.C. 924(c), and a consecutive 20-year term of imprisonment for his second offense under Section 924(c). He was also sentenced to a five-year term of supervised release following his prison term. 1.a. The evidence at trial showed that petitioner committed armed bank robberies on September 24, 1988, and December 14, 1988. /1/ In the first robbery, petitioner fired his gun twice, once into the ceiling of the bank and a second time in the direction of a customer attempting to enter the bank. In the second robbery petitioner drew his gun and ordered the people in the bank to get down on the floor. In each case, petitioner's co-defendant drove the getaway car. Gov't C.A. Br. 3, 8. b. At the time petitioner committed his first offense under 18 U.S.C. 924(c), the statute provided, in pertinent part: Whoever, during and in relation to any crime of violence or drug trafficking crime, * * * 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 * * *. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for ten years * * *. 18 U.S.C. 924(c)(1) (Supp. V 1987). By the time petitioner committed his second violation of Section 924(c), the statute had been amended to provide a mandatory 20-year term of imprisonment for a "second or subsequent conviction." Anti-Drug Abuse Act of 1988, Pub. L. 100-690, Section 6460(2)(A), 102 Stat. 4373. The district court sentenced petitioner on the Section 924(c) counts in accordance with the Eleventh Circuit's decision in United States v. Rawlings, 821 F.2d 1543 (11th Cir.), cert. denied, 484 U.S. 979 (1987), which held that a defendant charged in a single indictment with more than one offense under Section 924(c) is subject to a 5-year sentence for his first Section 924(c) conviction and an enhanced sentence for his "second or subsequent conviction" under that statute. The district court did not depart upward from the Sentencing Guidelines, even though the presentence investigation report suggested it could do so on the ground that petitioner's criminal history score did not reflect the seriousness of petitioner's criminal history (Presentence Investigation Report 3-5). The suggestion was based on the fact that petitioner had an extensive criminal history that under somewhat different circumstances would have brought him within the career offender Guideline, Section 4B1.1. Between June 29, 1978, and December 13, 1978, petitioner and an accomplice had robbed four banks at gunpoint. /2/ In the December 13, 1978, robbery, petitioner fired his gun into the bank's ceiling. He had also burglarized a dwelling on September 19, 1978, taking among other things a gun that he used in subsequent bank robberies. /3/ Because he was sentenced for those offenses (along with a vehicle theft) in a single proceeding, he was not subject to the career offender Guideline that would have applied if he had been sentenced for the 1978 bank robberies and burglary in two or more proceedings. See Sentencing Guidelines Sections 4A1.2, 4B1.1. /4/ 2. The court of appeals affirmed. Pet. App. A4818-A4828. Like the district court, it held that petitioner was properly sentenced to 5 years' imprisonment on his first Section 924(c) conviction and 20 years' imprisonment on his second. ARGUMENT Petitioner contends (Pet. 11-16) that the district court incorrectly sentenced him to a 20-year term of imprisonment for his second conviction under 18 U.S.C. 924(c). He maintains that Section 924(c)'s enhanced sentence for a "second or subsequent conviction" does not apply where the first conviction and the "second or subsequent conviction" are obtained in a single prosecution. As we explained in our brief in opposition to the petitions for certiorari in Smith v. United States, No. 90-6901, and Keller v. United States, No. 90-713, cert. denied, Apr. 22, 1991, /5/ there is no disagreement among the courts of appeals on that question, which raises an issue solely of statutory construction. There is no warrant, accordingly, for review by this Court. As petitioner recognizes (Pet. 11), every court of appeals that has addressed the question has held that a defendant who is convicted in a single proceeding of two or more violations of Section 924(c) based on separate criminal episodes is subject to the enhanced penalty under 18 U.S.C. 924(c) for the "second or subsequent conviction," even if the first such conviction arose in the same proceeding. United States v. Bennett, 908 F.2d 189, 194 (7th Cir.), cert. denied, 111 S. Ct. 534 (1990); United States v. Nabors, 901 F.2d 1351, 1358 (6th Cir.), cert. denied, 111 S. Ct. 192 (1990); United States v. Foote, 898 F.2d 659, 668 (8th Cir.), cert. denied, 111 S. Ct. 112 (1990); United States v. Rawlings, supra. Even if petitioner were correct that the sentence for each Section 924(c) offense should be five years' imprisonment, his sentence, properly calculated, could have been as high as or higher than the sentence he received. Petitioner was eligible for sentencing as an armed career criminal under 18 U.S.C. 924(e). Under Section 924(e), a defendant convicted of being a felon in possession of a firearm must receive a mandatory minimum sentence of 15 years' imprisonment and a maximum of life imprisonment if he has "three previous convictions * * * for a violent felony or a serious drug offense." /6/ Petitioner has at least five such previous offenses: four or five armed bank robberies and a burglary. Thus, he was subject for his Section 922(g) offense to a sentence of between 15 years and life imprisonment, rather than the 60-month sentence the court imposed. Furthermore, as the presentence report suggested, the district court could have departed upward from the otherwise applicable Guideline for the bank robberies because petitioner's criminal history category of II did not adequately reflect the seriousness of his prior criminal conduct. The Guidelines treated his 1978 convictions for armed bank robbery and burglary no differently than they would have treated a single prior bank robbery or burglary conviction. It would therefore have been entirely reasonable for the district court to depart upward from the Guideline sentence for bank robbery to the Guideline range for a career offender convicted of a bank robbery (262 to 327 months' imprisonment). See Guideline Section 4B1.2 (specifying an offense level of 34 if the maximum statutory term of imprisonment is 25 years or more (as it is for armed bank robbery under 18 U.S.C. 2113(d)) and a criminal history category VI. Cf. United States v. Gonzalez, No. 90-1544 (6th Cir. Apr. 3, 1991) (approving Guideline departure by analogy to career offender Guideline); United States v. Hazel, No. 90-3067 (D.C. Cir. Mar. 15, 1991); United States v. Gardner, 905 F.2d 432 (10th Cir.), cert. denied, 111 S. Ct. 202 (1990); United States v. Delvecchio, 920 F.2d 810 (11th Cir. 1991) (upward departure permitted for serious criminal history). Accordingly, even if petitioner is correct on the legal issue he raises here, the district court could have imposed a sentence equally severe by a proper application of the governing statutes and Sentencing Guidelines. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General KAREN SKRIVSETH Attorney APRIL 1991 /1/ The district court dismissed charges relating to two other bank robberies. See Pet. App. A4824-A4825. The court of appeals stated there had been enough evidence for a reasonable jury to convict petitioner on all counts charged in the case. Id. at A4825. /2/ The presentence report indicates without explanation that petitioner pleaded guilty to five armed robberies in connection with robbing the four banks. /3/ Petitioner also had previous convictions for unauthorized possession of a key to a public building and for possession of an article from which the serial number had been removed; he had been charged as a juvenile with burglary and shoplifting; and he had theft charges pending at the time of sentencing stemming from a $12,000 shortage in bank deposits he was charged with making for an employer. /4/ If petitioner were a career offender, his Guideline range for the bank robberies would be 262 to 327 months' imprisonment, and his sentences for violating Section 924(c) would be consecutive to that sentence and to each other. /5/ We have provided counsel for petitioner with a copy of our Brief in Opposition to Certiorari in Smith and Keller. /6/ Section 924(e) applies even where the convictions occur at the same time, so long as the convictions stem from separate criminal episodes or transactions. See, e.g., United States v. Schieman, 894 F.2d 909, 910-913 (7th Cir.), cert. denied, 111 S. Ct. 155 (1990) (citing cases); United States v. Schoolcraft, 879 F.2d 64, 70-75 (3d Cir.), cert. denied, 110 S. Ct. 546 (1989); United States v. Herbert, 860 F.2d 620, 622 (5th Cir. 1988); United States v. Wicks, 833 F.2d 192, 193 (9th Cir. 1987), cert. denied, 488 U.S. 831 (1988).