MILLARD LEE SMITH, JR., PETITIONER V. UNITED STATES OF AMERICA RILEY HARRINGTON KELLER, III, PETITIONER V. UNITED STATES OF AMERICA No. 90-6901, No. 90-7013 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. 1-10) is reported at 916 F.2d 628. /1/ JURISDICTION The judgment of the court of appeals was entered on November 2, 1990. The petition for a writ of certiorari in No. 90-6901 was filed on January 25, 1991, and the petition in No. 90-7013 was filed on January 31, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioners properly received an enhanced penalty under 18 U.S.C. 924(c) for their "second or subsequent" firearms convictions, where all of the firearms convictions resulted from a single prosecution. STATEMENT Following a jury trial in the United States District Court for the Northern District of Georgia, petitioner Keller was convicted on five counts of armed bank robbery, in violation of 18 U.S.C. 2113(a) and (d); three counts of conspiring to commit bank robbery, in violation of 18 U.S.C. 371; and three counts of carrying a firearm during the commission of a crime of violence, in violation of 18 U.S.C. 924(c). He was sentenced to a total of 72 months' imprisonment on the bank robbery and conspiracy counts, to be followed by a 5-year term of imprisonment for the first conviction under 18 U.S.C. 924(c) and two consecutive 10-year terms of imprisonment for the second and third convictions under 18 U.S.C. 924(c). Petitioner Smith was convicted on two of the bank robbery counts, two of the conspiracy counts, and two of the firearms counts. /2/ He was sentenced to a total of 40 months' imprisonment on the bank robbery and conspiracy counts, to be followed by a 5-year term of imprisonment on the first conviction under 18 U.S.C. 924(c) and a consecutive 10-year term of imprisonment on the second conviction under 18 U.S.C. 924(c). 1. The evidence at trial showed that Keller committed a series of five bank robberies between June 17, 1988, and July 18, 1988. The banks were branches of Bank South located in Kroger Supermarkets. In the first two robberies, he obtained the money by telling the bank tellers that he had a bomb; in the last three, he possessed a shotgun. Smith and an unindicted co-conspirator participated with Keller in the fourth and fifth robberies, which occurred on the same day at different bank branches. Before committing the fourth robbery, Keller showed Smith and the unindicted co-conspirator the shotgun that he would use. Pet. App. 3-4. 2. At the time the offenses were committed, the Gun Control Act of 1968, as amended, 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). The district court sentenced petitioners 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 holds that where a defendant is charged with several Section 924(c) offenses in a single indictment, the defendant is subject to a 5-year sentence for the first conviction on a Section 924(c) count, and he is subject to the enhanced 10-year sentence for any "second or subsequent conviction" on the remaining Section 924(c) counts. 3. On appeal, petitioners asserted, with respect to their firearms sentences, that the district court should have departed downward from their Sentencing Guidelines sentence because other courts of appeals would not apply Section 924(c)'s enhanced sentence provision to their case (Keller C.A. Br. 19-24; Smith C.A. Br. 13) and because the Rawlings rule did not apply to the facts of this case (Smith C.A. Br. 14-15). The court of appeals affirmed their firearms sentences without discussing those points. Pet. App. 10. /3/ ARGUMENT Petitioners contend that the district court incorrectly sentenced them to 10-year terms of imprisonment for their second (and in Keller's case, third) conviction under 18 U.S.C. 924(c). Keller Pet. 12-17; Smith Pet. 14-15. They maintain 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. 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. Contrary to petitioners' assertions, every court of appeals that has addressed the question presented here 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." United States v. Hamblin, 911 F.2d 551, 554 (11th Cir. 1990), cert. pending, No. 90-7221; 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. See also United States v. Fazzini, 871 F.2d 635 (7th Cir.), cert. denied, 110 S. Ct. 517 (1989) (unchallenged 25-year term of imprisonment for three Section 924(c) convictions in same proceeding). The cases that petitioners cite as conflicting authority do not address the issue presented here. All of the cases, except one, involved multiple Section 924(c) convictions where the district court imposed multiple 5-year sentences and the government did not appeal the sentencing decision. See United States v. Henry, 878 F.2d 937 (6th Cir. 1989); United States v. Torres, 862 F.2d 1025 (3d Cir. 1988); United States v. Fontanilla, 849 F.2d 1257 (9th Cir. 1988); United States v. L'Allier, 838 F.2d 234 (7th Cir. 1988); United States v. Chalan, 812 F.2d 1302 (10th Cir. 1987), cert. denied, 109 S. Ct. 534 (1988). The remaining case, United States v. Shavers, 820 F.2d 1375 (4th Cir. 1987), involved a single Section 924(c) conviction. None of those cases discusses the issue presented in this case. In short, there is no disagreement among the courts of appeals on the question presented and no warrant for further review. 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 MARCH 1991 /1/ The pages of petitioners' appendices are unnumbered. Except as otherwise noted, our petition appendix citations refer to the appendix in Keller's petition (No. 90-7013) and cite the pages as if they were numbered in sequence. /2/ The court of appeals' opinion mistakenly states that Smith was convicted on three counts of bank robbery, three counts of conspiracy, and three firearms counts. Pet. App. 3 n.1. Instead, Smith was acquitted on one count of each offense. See Gov't C.A. Br. 2; Smith Pet. App. 11-12. /3/ The court of appeals also rejected Keller's contention that the evidence was sufficient to convict him on the conspiracy count on which Smith had been acquitted. The court nonetheless reversed his conviction on that count because it believed that the district court had improperly amended the indictment in the jury instructions. Pet. App. 4-10. Those issues are not before this Court.