United States v. Cooper , 529 F. App'x 961 ( 2013 )

FILED
United States Court of Appeals
Tenth Circuit
July 19, 2013
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 12-3250
v.
(D.C. No. 6:12-CR-10071-EFM-1)
(D. Kan.)
LESSIE B. COOPER, JR.,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, EBEL, and HOLMES, Circuit Judges.
Lessie B. Cooper, Jr., pleaded guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 924(c). At sentencing, the
district court found that Mr. Cooper was subject to a statutory ten-year mandatory
minimum because the firearm was a short-barreled rifle. See 18 U.S.C.
§ 924(c)(1)(B)(i). Mr. Cooper objected that § 924(c)(1)(B)(i) provided a specific
*
After examining the briefs and appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
sentence of ten years instead of a range of ten years to life, as interpreted by the
court and the government, and that this section was not appropriately applied to
him because he had not admitted to knowing that the rifle had a shortened barrel.
Overruling these objections, the district court sentenced Mr. Cooper to a term of
160 months’ imprisonment. On appeal, Mr. Cooper raises the same arguments he
made before the district court. For the reasons set forth below, we affirm in part
and reverse and remand in part.
I
In March 2012, Mr. Cooper and another individual robbed a branch of
Commerce Bank in Wichita, Kansas. In carrying out the robbery, Mr. Cooper
brandished a 9mm semi-automatic rifle with a shortened barrel. He was arrested
shortly after leaving the bank and was subsequently charged with three counts, all
related to the robbery. As relevant here, Count Two charged Mr. Cooper with
brandishing a semi-automatic rifle during and in relation to a crime of violence.
Notably, the indictment did not charge Mr. Cooper with using a short-barreled
rifle, nor did it mention that the rifle used had a shortened barrel. 1
Mr. Cooper pleaded guilty to Count Two. In his plea agreement, Mr.
1
Specifically, Count Two of the indictment charged that Mr. Cooper
“knowingly carried and used a firearm, to wit: a Hi-Point, Model 995, 9mm rifle,
. . . which was brandished, during and in relation to a crime of violence . . . , that
is, the robbery of Commerce Bank.” R., Vol. I, at 7–8 (Indictment, filed Mar. 27,
2012).
2
Cooper admitted that he had brandished the rifle, and that the rifle “was measured
to have a barrel length of 16.5 inches and a[n] overall length of 20.75 inches.”
R., Vol. I, at 18 (Plea Agreement, filed June 13, 2012). Prior to sentencing, the
United States Probation Office prepared a Presentence Investigation Report. 2 The
Probation Office determined that Mr. Cooper was subject to a ten-year mandatory
minimum, under 18 U.S.C. § 924(c)(1)(B)(i). Section 924(c)(1) punishes “any
person who, during and in relation to any crime of violence or drug trafficking
crime . . . uses or carries a firearm, or who, in furtherance of any such crime,
possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). The subsection at issue provides
that such person “shall be sentenced to a term of imprisonment of not less than 10
years” if the firearm “is a short-barreled rifle, short-barreled shotgun, or
semiautomatic assault weapon.” Id. § 924(c)(1)(B)(i) (emphasis added).
Mr. Cooper objected to the PSR’s characterization of § 924(c)(1)(B)(i) as
providing a mandatory minimum as opposed to a specific statutory sentence.
Additionally, he objected to the application of this subsection because he had not
specifically admitted to knowing that the rifle had a shortened barrel. The district
court overruled both objections. The district court found that the correct
Guidelines range was ten years to life imprisonment. The district court then
sentenced Mr. Cooper to 160 months’ imprisonment. On the government’s
2
The Probation Office used the 2011 edition of the United States
Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”); we do the same.
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motion, made pursuant to the plea agreement, the district court dismissed the two
remaining counts. Mr. Cooper raises the same two issues on appeal.
II
We review a defendant’s sentence “under an abuse of discretion standard
for procedural . . . reasonableness.” United States v. Gordon, 710 F.3d 1124,
1160 (10th Cir. 2013) (quoting United States v. Snow, 663 F.3d 1156, 1160 (10th
Cir. 2011)) (internal quotation marks omitted). “Procedural review asks whether
the sentencing court committed any error in calculating or explaining the
sentence.” United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir.
2008). “A sentence is procedurally unreasonable if the district court incorrectly
calculates . . . the Guidelines sentence . . . .” Gordon, 710 F.3d at 1160 (quoting
United States v. Haley, 529 F.3d 1308, 1311 (10th Cir. 2008)) (internal quotation
marks omitted). Finally, we “review the court’s legal conclusions de novo and its
factual findings for clear error.” United States v. Ramos, 695 F.3d 1035, 1039
(10th Cir. 2012) (quoting United States v. Burgess, 576 F.3d 1078, 1101 (10th
Cir. 2009)) (internal quotation marks omitted).
A
Mr. Cooper first asserts that the district court’s interpretation of 18 U.S.C.
§ 924(c) as setting a sentencing range instead of a specific, fixed term of years
was in error. We may, however, easily dispose of this argument. Indeed, as Mr.
Cooper admits, it is foreclosed by our precedent. See Aplt. Opening Br. at 4
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(“This Circuit, along with every other Circuit Court to address the issue, has
rejected th[is] argument and held that the maximum sentencing provision under
§ 924(c) is implicitly life, even though the statute does not say so.”). As we have
previously explained, § 924(c) “sets a maximum penalty . . . of life imprisonment
and specifies that a defendant found to possess a particular type of weapon will
receive a specific mandatory minimum prison sentence.” United States v. Avery,
295 F.3d 1158, 1170 (10th Cir. 2002); see United States v. Bowen, 527 F.3d 1065,
1074 n.7 (10th Cir. 2008) (“[T]he ‘maximum penalty’ for a violation of
§ 924(c)(1) is ‘life imprisonment.’” (quoting Avery, 295 F.3d at 1170)); see also
Alleyne v. United States, 570 U.S. ----, 133 S. Ct. 2151, 2160 (2013) (noting that
the base penalty under § 924(c) “is five years to life in prison” and explaining
that “the maximum of life marks the outer boundary of the range” (emphasis
added)).
“We cannot, of course, ‘overturn the decision of another panel of this court
barring en banc reconsideration, a superseding contrary Supreme Court decision,
or authorization of all currently active judges on the court.’” United States v. De
Vaughn, 694 F.3d 1141, 1149 n.4 (10th Cir. 2012) (quoting United States v.
Edward J., 224 F.3d 1216, 1220 (10th Cir. 2000)). Because none of these events
has ensued, we hold that the district court properly concluded that § 924(c)
provides for a statutory range with life as the upper boundary.
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B
Mr. Cooper’s second challenge on appeal addresses the district court’s
application of § 924(c)(1)(B)(i). Specifically, he argues that the short-barreled
nature of the firearm is an offense element—that is, it is an element of a specific
§ 924(c) offense relating to such firearms, i.e., § 924(c)(1)(B)(i). Consequently,
he reasons that before the district court could properly apply § 924(c)(1)(B)(i) in
sentencing a defendant, either the defendant must have admitted to this short-
barreled element in connection with his conviction of the § 924(c) offense, or
there must have been a factual finding regarding this element by a jury, beyond a
reasonable doubt. Moreover, he contends that, because a shortened barrel is an
element, the government must prove a mens rea related to that
element—specifically, that Mr. Cooper knew the firearm was a short-barreled
rifle.
In response the government concedes “that the fact that a firearm is short-
barreled is an element of the offense under § 924(c)(1)(B)(i).” Aplee. Br. at 18
n.6; see id. at 14–17; see also id. at 7 n.2 (explaining that the “Department of
Justice adopted this new position on October 23, 2012, after [Mr. Cooper] was
sentenced”). Therefore, the government reasons that because Mr. Cooper was not
charged with this element, the district court committed procedural error in taking
the element into account when sentencing Mr. Cooper, and Mr. Cooper must be
resentenced. However, the government also maintains that because we should
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remand for resentencing under the appropriate subsection of § 924(c) (relating to
brandishing of a firearm), we need not reach the question of whether the
government was required to prove that Mr. Cooper knew the weapon had a
shortened barrel (that is, the mens-rea issue). We agree with the government that
we need not reach the mens-rea issue and thus leave it for another day.
For purposes of resolving this appeal, we assume without deciding that the
parties’ conclusion is correct: the fact that the firearm is short-barreled is an
element of the offense. Thus, accepting the short-barreled nature of the firearm
as an element, it is clear that the government was obliged to charge this fact in the
indictment. See United States v. O’Brien, 560 U.S. 218, 130 S. Ct. 2169, 2174
(2010) (“Elements of a crime must be charged in an indictment and proved to a
jury beyond a reasonable doubt.”); United States v. Hathaway, 318 F.3d 1001,
1006 (10th Cir. 2003) (“Much turns on the determination that a fact is an element
of an offense rather than a sentencing consideration, given that elements must be
charged in the indictment, submitted to a jury, and proven by the Government
beyond a reasonable doubt.” (quoting Jones v. United States, 526 U.S. 227, 232
(1999)) (internal quotation marks omitted)). This the government failed to do.
See Aplee. Br. at 15 (admitting that since the indictment “did not charge [Mr.
Cooper] with using a short-barreled firearm, which is an element of the offense,
he was not convicted of this offense,” but contending that Mr. Cooper still stands
convicted of the § 924(c) offense relating to brandishing a firearm).
7
We agree with the parties that the district court committed procedural error
in making a finding regarding the short-barreled nature of the weapon and
concluding that Mr. Cooper was subject to § 924(c)(1)(B)(i)’s ten-year mandatory
minimum. “A sentence is procedurally unreasonable if the district court
incorrectly calculates . . . the Guidelines sentence . . . .” Gordon, 710 F.3d at
1160 (quoting Haley, 529 F.3d at 1311) (internal quotation marks omitted); see
United States v. Kieffer, 681 F.3d 1143, 1166 (10th Cir. 2012). In relying on its
finding regarding the applicability of the ten-year mandatory minimum from
§ 924(c)(1)(B)(i) to conclude that the advisory Guidelines sentence was ten years,
see U.S.S.G. § 2K2.4(b) (providing, inter alia, that “if the defendant, . . . was
convicted of violating [18 U.S.C. §] 924(c) . . . , the guideline sentence is the
minimum term of imprisonment required by statute”), the district court
improperly calculated the Guidelines sentence.
Procedural error is reversible error unless it is harmless; error is harmless
“if the record viewed as a whole clearly indicates the district court would have
imposed the same sentence had it not relied on the procedural miscue(s).”
Kieffer, 681 F.3d at 1165. Once again, the government concedes “that the error
was not harmless and seeks remand for a new sentencing proceeding uninfected
by the procedural error.” Aplee. Br. at 17. We agree and grant the relief that
both parties seek—viz., we reverse and remand, so that the district court can
resentence Mr. Cooper under the correct subsection of 18 U.S.C. § 924(c).
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III
We affirm the judgment of the district court, insofar as the court correctly
recognized that 18 U.S.C. § 924(c) establishes statutory mandatory minimums and
implicit maximums of life. We reverse the judgment of the district court with
respect to the application of 18 U.S.C. § 924(c)(1)(B)(i) and remand the case to
the district court with instructions to vacate Mr. Cooper’s sentence and
resentence him in accordance with this order and judgement.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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