United States v. Nelson , 276 F. App'x 420 ( 2008 )


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  •                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
    File Name: 08a0217n.06
    Filed: April 24, 2008
    No. 06-1928
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    UNITED STATES OF AMERICA,                            )
    )
    Plaintiff-Appellee,                          )
    )
    v.                                                   )    ON APPEAL FROM THE UNITED
    )    STATES DISTRICT COURT FOR THE
    KYLE GREGORY NELSON,                                 )    WESTERN DISTRICT OF MICHIGAN
    )
    Defendant-Appellant.                         )
    Before: DAUGHTREY and SUTTON, Circuit Judges; POLSTER,* District Judge.
    PER CURIAM. In this sentencing appeal, defendant Kyle Gregory Nelson claims
    that the district court erred by imposing a mandatory-minimum sentence of 120 months
    under 18 U.S.C. § 924(c)(1)(A)(iii), following his guilty plea to the charge of using, carrying,
    and discharging a firearm during and in the course of an attempted robbery. The plea was
    entered pursuant to an agreement with the government in exchange for the entry of a
    superceding information that omitted the additional charge of attempted armed robbery.
    Nelson now claims that, despite the fact that he was charged under subsection (iii) and
    pleaded guilty to that same provision, he should have been sentenced under subsection
    (ii) of the statute. We find no reversible error and affirm.
    *
    The Hon. Dan A. Polster, United States District Judge for the Northern District of Ohio, sitting by
    designation.
    No. 06-1928
    United States v. Nelson
    The statute in question provides that “any person who, 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 . . . (i) be sentenced to a term of imprisonment
    of not less than 5 years; (ii) if the firearm is brandished, be sentenced to a term of
    imprisonment of not less than 7 years; and (iii) if the firearm is discharged, be sentenced
    to a term of imprisonment of not less than 10 years.” 18 U.S.C. § 942(c)(1)(A). The
    defendant now contends that because the gun he was admittedly “brandishing” during the
    attempted robbery was discharged inadvertently – a fact that the government was willing
    to concede at Nelson’s guilty plea hearing – the record fails to establish the requisite mens
    rea for a mandatory-minimum sentence of 10 years under subsection (iii). Instead, he
    insists, he should have been sentenced under subsection (ii) of the statute.
    In support of this argument, Nelson relies on two recent cases in which sister circuits
    have found that general intent, at least, is necessary to support sentencing under
    subsection (iii). Both the D.C. Circuit and the Ninth Circuit consider “an intent requirement
    [to be] implicit in the discharge provision.” United States v. Brown, 
    449 F.3d 154
    , 155 (D.C.
    Cir. 2006) (the subsections “penalize increasingly culpable or harmful conduct” and
    because subsections (i) and (ii) both require intent, reading a mens rea requirement into
    the third subsection’s “discharge provision would be consistent with this progression”); see
    also United States v. Dare, 
    425 F.3d 634
    , 641 n.3 (9th Cir. 2005) (noting, without analysis,
    that “discharge” requires a general intent). On the other hand, two other circuit courts have
    -2-
    No. 06-1928
    United States v. Nelson
    reached the opposite conclusion, creating a circuit split. See United States v. Dean, ___
    F.3d ___, No. 06-14918, 
    2008 WL 441602
    , at *5 (11th Cir. Feb. 20, 2008) (rejecting
    Brown’s progression analysis); United States v. Nava-Sotelo, 
    354 F.3d 1202
    , 1204-05
    (10th Cir. 2003) (under the plain language of subsection (iii), a 10-year minimum sentence
    is mandatory even if the discharge was accidental or involuntary). In finding that proof of
    mens rea is not required under subsection (iii), the Tenth and Eleventh Circuits focused on
    a Supreme Court decision, Harris v. United States, 
    536 U.S. 545
    (2002), in which the Court
    held that section 924(c)’s brandishing and discharge provisions are “sentencing factors to
    found by the judge, not offense elements to be found by the jury.” 
    Id. at 556.
    Those two
    courts have concluded that “[a]s a result, no mens rea is required.” 
    Nava-Sotelo, 354 F.3d at 1206
    ; see also Dean, 
    2008 WL 441602
    , at *4 (subsection (iii) “is a sentence
    enhancement and merely reflects factors that will enhance sentencing, not elements of an
    offense”).
    The mens rea issue is one on which the Sixth Circuit has not taken a position. It is
    not one on which we are in a position to rule in this case, however. In the first place,
    although the defendant maintained below that he discharged his firearm inadvertently,
    beyond his statement to the district court that the weapon fired “accidentally,” he raised
    no contemporaneous objection to imposition of sentence under subsection (iii). Hence, he
    could assign no more than plain error on appeal. But in the absence of Sixth Circuit
    precedent and in the face of a clear circuit split, we are prevented from finding plain error.
    -3-
    No. 06-1928
    United States v. Nelson
    See United States v. Barrow, 
    118 F.3d 482
    , 492 (6th Cir. 1997) (“[I]n light [of] the circuit
    split regarding [this legal issue] and the lack of definitive precedent in this Circuit, the error
    was not ‘plain.’”).
    Moreover, in this case the defendant was charged with violating section
    924(c)(1)(A)(iii), agreed to plead guilty under subsection (iii) in return for concessions from
    the government, and did in fact plead guilty under that subsection. It thus appears that
    there is no basis for his challenge to the sentence imposed by the district court, nor an
    adequate basis on which to decide the question of first impression ostensibly presented
    by this appeal.
    The judgment of the district court is AFFIRMED.
    -4-
    

Document Info

Docket Number: 06-1928

Citation Numbers: 276 F. App'x 420

Filed Date: 4/24/2008

Precedential Status: Non-Precedential

Modified Date: 1/12/2023