United States v. Jack Voris ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10410
Plaintiff-Appellee,
D.C. No.
v. 4:16-cr-02267-
JGZ-DTF-1
JACK WITT VORIS,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted May 11, 2020 *
San Francisco, California
Filed July 7, 2020
Before: Sidney R. Thomas, Chief Judge, and Michelle T.
Friedland and Mark J. Bennett, Circuit Judges.
Opinion by Judge Bennett
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. VORIS
SUMMARY **
Criminal Law
In a case in which a jury convicted the defendant on six
counts of assault on a federal officer with a deadly or
dangerous weapon (18 U.S.C. § 111(a)(1) and (b)), six
counts of discharging a firearm in furtherance of a crime of
violence (18 U.S.C. § 924(c)(1)(A)), and one count of
possession of a firearm by a convicted felon (18 U.S.C.
§§ 922(g)(1), 924(a)(2)), the panel reversed one assault
conviction and one § 924(c) conviction, affirmed the district
court in all other respects, and remanded.
The defendant argued that his sentences and convictions
for five assault counts based on four shots he fired toward
the door of his motel room are multiplicitous in violation in
violation of Double Jeopardy Clause. Applying Ladner v.
United States, 358 U.S. 169 (1958), the panel concluded that
because the defendant fired four shots, only four assault
convictions are constitutionally permissible, even though at
least five officers came under fire from those four shots.
Because the statutory language construed in Ladner is nearly
identical to the language in the current version of § 111, the
panel rejected the government’s argument that Ladner is not
controlling. The panel held that the defendant met the plain
error test for reversal of one assault conviction. The panel
rejected the defendant’s argument that because he fired the
four shots in quick succession, he committed only one
assaultive act and can be convicted of only one assault.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. VORIS 3
Because each assault conviction served as a predicate
offense for each § 924(c) conviction, the panel reversed one
§ 924(c) conviction. The panel remanded to the district court
with instructions to vacate one § 111 conviction and one
§ 924(c) conviction and resentence the defendant
accordingly.
The defendant argued that § 924(c)(1)(A) should be
interpreted as requiring a separate firearm use to support
each § 924(c) conviction, and that he can be convicted of
only one § 924(c) count for the shots he fired toward the door
because he only used his firearm once (though he fired four
shots). The panel observed that under the plain and
unambiguous language of the statute, each discharge may be
considered a use within the meaning of the statute. The
panel therefore concluded that it was appropriate to charge
the defendant with four § 924(c) offenses, and affirmance is
compelled.
The panel held that Section 403 of the First Step Act of
2018—which amended § 924(c)(1)(C) so that a 25-year
sentence enhancement no longer applies when all of a
defendant’s § 924(c) convictions arise in the same
proceeding—does not apply to cases pending on appeal in
which the district court sentenced the defendant before the
enactment of the First Step Act. The panel expressed no
view on whether the First Step Act applies on resentencing.
The panel held that the district court did not abuse its
discretion in denying the defendant’s motions for a mistrial
and new trial based on the admission of an officer’s
testimony containing improper character evidence, where
the prejudice was minimal.
4 UNITED STATES V. VORIS
COUNSEL
Carol Lamoureux and Joshua F. Hamilton, Hernandez &
Hamilton PC, Tucson, Arizona, for Defendant-Appellant.
Michael Bailey, United States Attorney; Robert L. Miskell,
Appellate Chief; Matthew C. Cassell, Assistant United
States Attorney; United States Attorney’s Office, Tucson,
Arizona; for Plaintiff-Appellee.
OPINION
BENNETT, Circuit Judge:
A jury convicted Jack Voris on six counts of assault on a
federal officer with a deadly or dangerous weapon in
violation of 18 U.S.C. § 111(a)(1) and (b), six counts of
discharging a firearm in furtherance of a crime of violence
in violation of 18 U.S.C. § 924(c)(1)(A), and one count of
possession of a firearm by a convicted felon in violation of
18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court
sentenced him to 1,750 months (about 146 years) in prison.
Voris argues on appeal that (1) five assault convictions
are multiplicitous, (2) five § 924(c) convictions are
multiplicitous, (3) he is entitled to resentencing under § 403
of the First Step Act, and (4) the district court abused its
discretion in denying his motions for a mistrial and new trial.
We have jurisdiction under 18 U.S.C. § 3742(a) and
28 U.S.C. § 1291. We reverse one assault conviction and
one § 924(c) conviction, and remand to the district court
with instructions to vacate one assault conviction and one
§ 924(c) conviction and to resentence Voris. We affirm the
district court in all other respects.
UNITED STATES V. VORIS 5
I. Factual and Procedural Background
Voris was wanted on several outstanding warrants. In
October 2016, nine officers of the U.S. Marshals Task Force
(“Task Force”) went to the Quality Inn motel near Phoenix
International Airport, as they believed Voris and his
girlfriend were staying in a second-floor room. The nine
officers surrounded the room. Two were in the parking lot
behind the room. Five went to the front door of the room in
a “stack” formation, where individuals form a straight line
and are very close to one another. Two were also located
outside the front of the room but were not part of the stack
formation.
An officer in the stack knocked on the door. A few
seconds later, Voris opened the door and then quickly
slammed it shut and locked it. Voris later admitted that he
knew the individuals outside the room were police officers.
Voris then tried to escape out the back window of his room.
After Voris opened the window, Officer Garcia shouted at
him, “Police, Police, let me see your hands.” Voris
responded by reaching out the window with his gun and
firing one shot at Officer Garcia. He missed. Officer Garcia
and the other officer in the parking lot returned fire, also
missing.
Voris then pushed his girlfriend out the door of his
room. 1 The officers moved her out of the way, and the stack
moved a few feet away to the side of the door. A few
seconds later, Voris fired four shots toward the front of the
room. Two bullets exited through the bottom of the front
1
There is an immaterial discrepancy in the record over whether
Voris’s girlfriend exited the room before or after Voris fired out the back
window.
6 UNITED STATES V. VORIS
door and two hit a wall next to the door but did not exit the
wall. No officer was hit.
The officers retreated, evacuated neighboring rooms,
blocked the area, and called for backup. Voris surrendered
after several hours of negotiations.
The government charged Voris with nine counts of
assault on a federal officer with a deadly or dangerous
weapon in violation of 18 U.S.C. § 111(a)(1) and (b), nine
counts of discharging a firearm in furtherance of a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A), and one
count of possession of a firearm by a convicted felon in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2).
Officer Smith testified at Voris’s trial as to how the Task
Force generally plans an operation to arrest a suspect. He
explained that Task Force members consider, among other
things, why the person is wanted. Officer Smith then
explained that the officers were wearing protective
equipment, and some were armed with rifles. Later, when
asked what happened after Voris opened and closed the door,
Officer Smith testified that “I called out to our team that
we’re going to treat this as a barricaded situation because we
were already in possession of information related to Mr.
Voris’ criminal history.” The government immediately
redirected Officer Smith’s testimony by asking him how far
the stack had moved after the door closed and telling Officer
Smith that “[w]e don’t need to initially get into the why.”
Later that day, after the court recessed and excused the
jury, Voris moved for a mistrial. He argued that the
comment about his “criminal history” and the context in
which it was made would cause the jury to speculate that he
had a “horrible criminal history requiring immediate use of
a barricade.” The district court denied the motion the next
UNITED STATES V. VORIS 7
day after reviewing the transcript. The court determined that
a mistrial was not warranted because the reference to Voris’s
criminal history was brief and vague, and the jurors already
knew that Voris was a convicted felon. The court also
decided that a limiting instruction would do more harm than
good because it would highlight the testimony for the jury.
Voris did not object to the court’s decision not to give a
limiting instruction.
After the four-day trial, the jury convicted Voris on six
counts of assault on a federal officer with a deadly or
dangerous weapon, six counts of discharging a firearm in
furtherance of a crime of violence, and one count of being a
prohibited possessor of a firearm. The six assault and six
§ 924(c) convictions were based on the shots that Voris fired
toward Officer Garcia in the parking lot and the five officers
in the stack formation. Voris moved for a new trial based on
Officer Smith’s testimony referencing his criminal history.
The district court denied the motion for essentially the same
reasons it had denied the mistrial motion.
The district court sentenced Voris on October 9, 2018.
The court adopted the presentence report’s recommended
sentence and sentenced Voris to 1,750 months. Voris’s
sentence consisted of concurrent terms of 130 months on
each of the six assault counts and prohibited possessor count,
a consecutive 10-year sentence for the first § 924(c)
conviction, and five consecutive 25-year sentences for the
remaining five § 924(c) convictions.
Voris appeals his convictions and sentences related to the
five assault counts and five § 924(c) counts based on the four
gunshots that he fired toward the front door. He does not
appeal from the convictions based solely on his firing out of
his motel room’s back window. Voris also argues that he is
entitled to resentencing under § 403 of the First Step Act,
8 UNITED STATES V. VORIS
which amended when the 25-year minimum in
§ 924(c)(1)(C) applies, but which became law after the
district court sentenced him. Finally, he challenges the
district court’s denial of his motions for a mistrial and new
trial.
II. Standard of Review
We review Voris’s challenges to his assault convictions
for plain error as he concedes that he failed to raise them
below. “Under plain error review, a defendant ‘must show
(1) an error, (2) that is plain, (3) that affects substantial
rights, and (4) that seriously affects the fairness, integrity, or
public reputation of judicial proceedings.’” United States v.
Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007) (quoting United
States v. Smith, 424 F.3d 992, 1000 (9th Cir. 2005)).
Voris contends that de novo review applies to his
§ 924(c) statutory interpretation argument because he
sufficiently raised this argument below. He alternatively
argues that even if he failed to raise it below, we should
apply the “pure question of law” exception to plain error
review. See United States v. Wijegoonaratna, 922 F.3d 983,
992 (9th Cir. 2019). Because it does not affect our
conclusion, we assume without deciding that de novo review
applies.
We similarly need not decide on the appropriate standard
of review to apply to Voris’s arguments related to the First
Step Act because his arguments fail even under the de novo
standard.
Finally, we review the district court’s denial of a motion
for a mistrial and new trial for abuse of discretion. See
United States v. Dorsey, 677 F.3d 944, 954 (9th Cir. 2012).
The burden is on Voris to show that the district court abused
UNITED STATES V. VORIS 9
its discretion. See United States v. Escalante, 637 F.2d 1197,
1202 (9th Cir. 1980).
III. Analysis
A. Assault Convictions
Voris argues that his sentences and convictions for the
five assault counts based on the four shots he fired toward
the door are multiplicitous in violation of the Double
Jeopardy Clause. See United States v. Chilaca, 909 F.3d
289, 291 (9th Cir. 2018) (“The Double Jeopardy Clause of
the Fifth Amendment protects against multiple criminal
punishments for the same offense.”). We conclude that
because Voris fired four shots, only four assault convictions
are constitutionally permissible, even though at least five
officers came under his fire from those four shots. Thus, one
assault conviction is multiplicitous and must be reversed.
But Voris fails to show that the remaining four assault
convictions are multiplicitous.
In Ladner v. United States, 358 U.S. 169 (1958), the
Supreme Court construed 18 U.S.C. § 254, the predecessor
statute to § 111 (the statute of conviction for the assaults
here). Id. at 171, 176 n.4. The Court applied the rule of
lenity and held that the petitioner could be found guilty of
only one assault if he discharged his firearm only once, no
matter how many officers may have been impacted. Id.
at 177–78. Ladner establishes that one gunshot can support
only one assault under § 111. Thus, Voris can be convicted
of only four assaults based on the four shots he fired toward
the door.
The government argues that Ladner is not controlling
because the statutory language in the current version of
§ 111 differs from the language the Court construed in
10 UNITED STATES V. VORIS
Ladner. We disagree because the statutory language the
Court construed in Ladner is nearly identical to the language
in § 111. 2
Voris meets the plain error test for one assault
conviction. The error was plain because Ladner clearly
establishes that one gunshot can support only one assault
conviction under § 111. See United States v. Armijo, 5 F.3d
1229, 1233 (9th Cir. 1993) (“[T]he error must be ‘plain’ in
that it was clear under current law.”). In addition, the
multiplicitous conviction affected Voris’s substantial rights.
First, he was sentenced for the conviction. See Zalapa,
509 F.3d at 1064–65 (holding that collateral consequences
from “an erroneously-imposed sentence, even a concurrent
sentence,” affect a defendant’s substantial rights). More
importantly, the multiplicitous conviction supported one of
the § 924(c) convictions, which increased Voris’s sentence
by 25 years. Finally, the proceedings were fundamentally
unfair because the multiplicitous conviction violated Voris’s
Fifth Amendment right not “to be twice put in jeopardy” for
“the same offence.” U.S. Const. amend. V; see also Zalapa,
509 F.3d at 1065 (holding that multiplicitous convictions
subjected the defendant to double jeopardy, making “his
convictions fundamentally unfair”).
2
Section 254 provided: “Whoever shall forcibly resist, oppose,
impede, intimidate, or interfere with any person (if he is a federal officer
. . .) while engaged in the performance of his official duties, or shall
assault him on account of the performance of his official duties, shall be
imprisoned . . . .” Ladner, 358 U.S. at 170 n.1 (internal alterations
omitted) (quoting 18 U.S.C. § 254 (1940)). Section 111 provides:
“Whoever . . . forcibly assaults, resists, opposes, impedes, intimidates,
or interferes with any person designated in section 1114 of this title while
engaged in or on account of the performance of official duties . . . shall
[be fined or imprisoned, or both].” 18 U.S.C. § 111(a).
UNITED STATES V. VORIS 11
Voris, however, fails to show that the district court
plainly erred in entering judgment on the remaining four
assault convictions. He argues that because he fired the four
shots in quick succession, he committed only one assaultive
act and can be convicted of only one assault. Voris primarily
relies on Ladner, but Ladner did not consider whether
multiple shots fired in quick succession must be considered
as only one assault. Indeed, in Ladner, the Court suggested
that multiple shots might constitute more than one violation.
358 U.S. at 178 n.6 (stating that “[i]n view of the trial judge’s
recollection that more than one shot was fired . . . we cannot
say that it is impossible that petitioner was properly
convicted of more than one offense, even under the
principles which govern here” (internal quotation marks
omitted)).
Moreover, the out-of-circuit cases Voris cites do not
support his position that the district court plainly erred in
entering judgment on four of the assault convictions. None
addressed the question here of whether multiple gunshots
fired in quick succession must be construed as one assaultive
act. 3
3
See United States v. Thomas, 669 F.3d 421, 426 (4th Cir. 2012)
(holding that orally threatening and punching an officer were two distinct
assaults); United States v. Segien, 114 F.3d 1014, 1017, 1022 (10th Cir.
1997) (affirming two § 111 convictions against one victim when the
defendant’s acts—(1) grabbing the victim’s testicles and (2) orally
threatening and spitting on the victim—were separated in time and
location), overruled on other grounds as recognized in United States v.
Hathaway, 318 F.3d 1001, 1006 (10th Cir. 2003); United States v. Rivera
Ramos, 856 F.2d 420, 422–24 (1st Cir. 1988) (affirming three § 111
violations when each agent was separately held and threatened at
gunpoint at different times during the incident); United States v. Wesley,
798 F.2d 1155, 1156–57 (8th Cir. 1986) (affirming two § 111
convictions when a prisoner, during a struggle with guards, struck one
12 UNITED STATES V. VORIS
Nor does logic support Voris’s position. Voris
committed four assaultive acts by firing his weapon four
separate times toward the door. Fortuitously, none of the
officers was hit, but four (or more) could have been hit. And
the evidence clearly supports that Voris knew multiple
officers were in the precise area he targeted when he
intentionally fired his deadly weapon through a wooden door
and surrounding area. As long as there were four assaultive
acts and at least four potential victims, there were four
assaults. See United States v. Duran, 96 F.3d 1495, 1498,
1509–10 (D.C. Cir. 1996) (affirming four § 111 convictions
where the defendant fired a “barrage” of about nine bullets
across the North Lawn of the White House to fend off four
Secret Service agents); Thorne v. United States, 406 F.2d
995, 998–99 (8th Cir. 1969) (holding the petitioner was
properly sentenced on two § 111 counts where the petitioner
fired more than one shot during a scuffle with two agents);
Cameron v. United States, 320 F.2d 16, 17–18 (5th Cir.
1963) (holding the petitioner had been properly convicted of
two assaults where the petitioner and his co-defendant
(Ladner) shot “as many as five shots” at two officers).
guard and moments later a second guard was injured on the corner of the
bed); United States v. Theriault, 531 F.2d 281, 285 (5th Cir. 1976)
(holding that the defendant’s act of “hurling himself over the front seat
of the vehicle and into the steering wheel, thereby causing the accident
and injuries to the two officers,” was one act and thus defendant could
only be convicted of one assault count); United States v. Alexander,
471 F.2d 923, 933 (D.C. Cir. 1972) (holding, in a case in which the
defendant pointed a gun at a group of people, “where by a single act or
course of action a defendant has put in fear different members of a group
towards which the action is collectively directed, he is guilty of but one
offense”); United States v. Hodges, 436 F.2d 676, 677–78 (10th Cir.
1971) (affirming multiple assault convictions where defendants struck or
kicked officers, giving each officer individual attention).
UNITED STATES V. VORIS 13
We therefore conclude that Voris fails to show that the
district court erred, let alone plainly erred, in entering
judgment on the four assault convictions based on the four
shots he fired toward the door.
Based on the above, we reverse one assault conviction.
And because each assault conviction served as a predicate
offense for each § 924(c) conviction, we also reverse one
§ 924(c) conviction. See United States v. Smith, 924 F.2d
889, 894 (9th Cir. 1991) (“[E]ach 924(c)(1) count must be
supported by a separate predicate offense . . . .”). We
remand to the district court with instructions to vacate one
§ 111 conviction and one § 924(c) conviction and resentence
Voris accordingly. See Chilaca, 909 F.3d at 296–97
(holding that the appropriate remedy for meritorious
multiplicity claims is to remand for the district court to
vacate the multiplicitous convictions and resentence the
defendant). 4
B. Section 924(c) Convictions
Section 924(c)(1)(A) provides that “any person who,
during and in relation to any crime of violence . . . uses or
carries a firearm . . . shall, in addition to the punishment
provided for such crime of violence . . . if the firearm is
discharged, be sentenced to a term of imprisonment of not
less than 10 years.” 18 U.S.C. § 924(c)(1)(A)(iii) (emphasis
added). Voris argues that we should interpret this statute as
requiring a separate firearm use to support each § 924(c)
4
We note that the district court should exercise its discretion in
determining which § 111 conviction and § 924(c) conviction should be
vacated. See Ball v. United States, 470 U.S. 856, 864 (1985) (“[T]he
only remedy consistent with the congressional intent is for the District
Court, where the sentencing responsibility resides, to exercise its
discretion to vacate one of the underlying convictions.”).
14 UNITED STATES V. VORIS
conviction. If the statute requires a separate firearm use for
each conviction, then according to Voris, he can be
convicted of only one § 924(c) count for the shots he fired
toward the door because he only used his firearm once
(though he fired four shots).
Voris relies on out-of-circuit cases that have interpreted
§ 924(c) as requiring a separate firearm use for each § 924(c)
conviction. 5 We note that none of these cases considered
5
See United States v. Jackson, 918 F.3d 467, 492–94 (6th Cir. 2019)
(vacating one § 924(c) offense and leaving only one such offense
standing when the defendant made a single choice to use a gun by placing
it at one victim’s head); United States v. Rentz, 777 F.3d 1105, 1115
(10th Cir. 2015) (en banc) (Gorsuch, J.) (holding that “each
[§ 924(c)(1)(A)] charge requires an independent use, carry, or
possession,” and thus the defendant could be convicted of only one
§ 924(c) charge when he fired a single shot that injured one victim and
killed another); United States v. Cureton, 739 F.3d 1032, 1039–45 (7th
Cir. 2014) (vacating one § 924(c) conviction and leaving only one such
conviction in place when the defendant “pointed a single gun at [the
victim] a single time”); United States v. Phipps, 319 F.3d 177, 186–89
(5th Cir. 2003) (vacating one § 924(c) conviction and leaving only one
such conviction in place when the defendants used a firearm only once
by putting it to the victim’s head); United States v. Finley, 245 F.3d 199,
206–08 (2d Cir. 2001) (holding a defendant could not be punished twice
under § 924(c) “for continuous possession of a firearm in furtherance of
simultaneous predicate offenses consisting of virtually the same
conduct”); United States v. Wilson, 160 F.3d 732, 749–50 (D.C. Cir.
1998) (vacating one § 924(c) conviction and leaving only one such
conviction standing where it was undisputed that the defendant used his
firearm once, albeit repeatedly, to kill one victim).
Voris also claims that United States v. Barrett, 496 F.3d 1079 (10th
Cir. 2007), supports that multiple discharges of a firearm must be
considered a single use. The issue in Barrett, however, was whether the
offenses underlying each § 924(c) count were distinct crimes. Id.
at 1095–96. We also note that in Barrett the court affirmed multiple
UNITED STATES V. VORIS 15
whether multiple successive shots fired at multiple victims
must be considered a single use of a firearm limiting the
government to one § 924(c) conviction.
The government argues that Voris’s position is
foreclosed by Ninth Circuit precedent. The Ninth Circuit
cases cited by the government establish that separate,
properly charged predicate offenses can support multiple
§ 924(c) convictions, but they do not specifically address the
precise issue raised by Voris—whether § 924(c) requires
that each § 924(c) charge be based on a separate firearm use.
For example, in United States v. Andrews, 75 F.3d 552 (9th
Cir. 1996), one defendant argued that she could be convicted
of only one § 924(c) offense because her underlying
predicate offenses “occurred at virtually the same time.” Id.
at 557. We rejected her argument and held that binding
precedent compelled us to affirm the multiple § 924(c)
convictions because they were each based on separate
offenses that were properly charged. Id. at 557–58. Thus,
in Andrews we confirmed that each § 924(c) charge must be
based on a separate, properly charged predicate offense. Id.
But we did not explicitly discuss whether each § 924(c)
charge must also be based on a separate firearm use. 6
§ 924(c) counts even though the predicate offenses were committed
“with a single, continuous use of a firearm.” Id. at 1096.
6
We note, however, that the defendant was convicted of four
§ 924(c) offenses even though only two firearms were used against four
victims, with all shots fired within “seconds.” Andrews, 75 F.3d at 554–
55. We upheld each of the four convictions. Id. at 558. Though the
defendant’s argument was not exactly the same as Voris’s, it was very
similar. See also United States v. Fontanilla, 849 F.2d 1257, 1259 (9th
Cir. 1988) (holding, in a case involving one shooting but two victims:
“Because the murder and assault were properly charged as separate
16 UNITED STATES V. VORIS
In this case, the undisputed facts make clear that Voris’s
conduct amounts to four such “uses.” 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,
and there were at least four potential victims. We must keep
in mind the plain and unambiguous language of the statute—
“any person who, during and in relation to any crime of
violence . . . uses . . . a firearm . . . shall, in addition to the
punishment provided for such crime of violence . . . if the
firearm is discharged, be sentenced to a term of
imprisonment . . . .” 18 U.S.C. § 924(c)(1)(A)(iii)
(emphasis added). Discharge is “a type of use” under the
statute, United States v. Beaudion, 416 F.3d 965, 969 (9th
Cir. 2005), and Voris clearly discharged his firearm four
times in committing four crimes of violence, and it makes no
difference that the shots were quickly fired. 7 Because each
discharge here may be considered a use within the meaning
of the statute, it was appropriate to charge Voris with four
§ 924(c) offenses based on the four shots he fired toward the
door. 8 The plain and unambiguous language of
§ 924(c)(1)(A) compels affirmance, and our decision is
crimes, it was permissible to charge appellant with a separate firearm
charge for each crime”).
7
See also Bailey v. United States, 516 U.S. 137, 148 (1995) (“The
active-employment understanding of ‘use’ certainly includes[,] . . . most
obviously, firing . . . a firearm.”), superseded by statute as stated in
Welch v. United States, 136 S. Ct. 1257, 1267 (2016).
8
Because there were multiple choices and acts here, we express no
view on whether multiple discharges from a firearm claimed to have
resulted from one act could support multiple § 924(c) charges.
UNITED STATES V. VORIS 17
entirely consistent with the conclusions reached by our sister
circuits.
C. Section 403 of the First Step Act
When the district court sentenced Voris, § 924(c)(1)(C)
provided that a 25-year enhancement applied to each
“second or subsequent [§ 924(c)] conviction.” 18 U.S.C.
§ 924(c)(1)(C) (2006). The 25-year enhancement(s) applied
even when all the defendant’s § 924(c) convictions arose in
the same proceeding. See Deal v. United States, 508 U.S.
129, 131–32 (1993).
On December 21, 2018—after the district court
sentenced Voris and while this appeal was pending—
Congress enacted the First Step Act. See First Step Act of
2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018). Section
403 of the Act amended § 924(c)(1)(C) so that the 25-year
enhancement applies only “after a prior conviction under this
subsection has become final.” Id. § 403(a), 132 Stat.
at 5221–22. Thus, the 25-year enhancement no longer
applies when all of a defendant’s § 924(c) convictions arise
in the same proceeding. If § 403 applied here, Voris’s
sentence for the five properly charged § 924(c) counts would
have been 50 years, instead of 110 years. 9
Voris argues that he is entitled to resentencing under the
First Step Act because § 403 applies to cases pending on
appeal when the Act became law. Congress, however,
expressly limited the retroactive application of § 403.
Section 403(b) of the Act provides: “This section [403], and
9
Voris would have been sentenced to 10-year consecutive sentences
for each § 924(c) conviction instead of a 10-year sentence for his first
§ 924(c) conviction and 25-year consecutive sentences for each of the
remaining § 924(c) convictions. See 18 U.S.C. § 924(c)(1)(A)(iii), (C).
18 UNITED STATES V. VORIS
the amendments made by this section, shall apply to any
offense that was committed before the date of enactment of
this Act, if a sentence for the offense has not been imposed
as of such date of enactment.” § 403(b), 132 Stat. at 5222
(emphasis added).
Statutory terms are normally given their “ordinary
meaning” if they are not defined in the statute. FCC v. AT
& T Inc., 562 U.S. 397, 403 (2011) (quoting Johnson v.
United States, 559 U.S. 133, 138 (2010)). “Generally a
sentence is deemed imposed when it is announced by the
district judge in open court . . . .” United States v. Colace,
126 F.3d 1229, 1231 (9th Cir. 1997). Other circuits have
similarly concluded that a sentence is “imposed” under
§ 403(b) when the district court sentences the defendant. See
United States v. Cruz-Rivera, 954 F.3d 410, 413 (1st Cir.
2020) (order); United States v. Jordan, 952 F.3d 160, 172
(4th Cir. 2020); United States v. Hodge, 948 F.3d 160, 163–
64 (3d Cir. 2020); United States v. Richardson, 948 F.3d
733, 748–50 (6th Cir. 2020).
Indeed, “Congress has repeatedly used derivations of the
word ‘impose’ to denote the moment that the district court
delivers the defendant’s sentence.” Richardson, 948 F.3d
at 748–49 (citing, for example, 18 U.S.C. § 3742(a), which
allows for review of a sentence “imposed in violation of law”
and 18 U.S.C. § 3553(a), which instructs district courts to
consider certain factors in “imposing a sentence”); see also,
e.g., Fed. R. Crim. P. 32(b)(1) (“The court must impose
sentence without unnecessary delay.”).
UNITED STATES V. VORIS 19
Voris argues that we should interpret “imposed” in
§ 403(b) as “finally imposed.” 10 This argument is
unavailing given the text of § 403(b) and the ordinary
meaning of “imposed” in the criminal sentencing context.
Further, Congress knew exactly how to write the statute
Voris contends it did write here. 11 “Congress did use finality
as a marker in the immediately preceding section, § 403(a),
amending § 924(c) so that the 25-year mandatory minimum
would apply only to offenses that occur after a prior § 924(c)
conviction ‘become[s] final.’” Jordan, 952 F.3d at 173
(alterations in original) (quoting § 403(a), 132 Stat. at 5222);
see also Cruz-Rivera, 954 F.3d at 413 (reasoning that
Congress knew how to make finality the key in § 403(b)
because it did so in other parts of the First Step Act); Hodge,
948 F.3d at 163 (same).
We reject Voris’s remaining arguments, as they would
require us to ignore the plain unambiguous language of
§ 403(b) and turn to other statutory interpretation rules. See
Caminetti v. United States, 242 U.S. 470, 485 (1917)
10
Voris contends that a Sixth Circuit case, United States v. Clark,
110 F.3d 15 (6th Cir. 1997), superseded by regulation on other grounds,
supports that a sentence is not “imposed” under § 403(b) until it has been
decided on appeal. The Sixth Circuit, however, recently rejected this
argument and held that a sentence is “imposed” under § 403(b) when
pronounced in the district court. Richardson, 948 F.3d at 748–53. In
Richardson, the court refused to extend Clark to the First Step Act and
even questioned whether Clark remains (or ever was) good law. Id. at
750–53. We do not find Voris’s reliance on Clark persuasive.
11
For example, Congress could have used “become final” instead of
“been imposed,” in which case the statute would have provided: “This
section, and the amendments made by this section, shall apply to any
offense that was committed before the date of enactment of this Act, if a
sentence for the offense has not become final as of such date of
enactment.”
20 UNITED STATES V. VORIS
(“Where the language is plain and admits of no more than
one meaning, the duty of interpretation does not arise, and
the rules which are to aid doubtful meanings need no
discussion.”).
For the reasons stated above, we hold that § 403 of the
First Step Act does not apply to cases pending on appeal in
which the district court sentenced the defendant before the
enactment of the First Step Act. Voris therefore is not
entitled to resentencing under the First Step Act in this
appeal. 12
D. Motions for a Mistrial and New Trial
Voris’s final argument is that the district court abused its
discretion by denying his motions for a mistrial and new trial
based on Officer Smith’s testimony. He asserts that Officer
Smith’s testimony about his “criminal history” and other
testimony about the precautions taken by the Task Force
were highly prejudicial because they suggested to the jury
that Voris was a violent and dangerous criminal. The
government concedes that the “criminal history” remark was
improper character evidence under Fed. R. Evid. 404(a).
Voris relies on two cases to show that the district court
abused its discretion, United States v. Dorsey, 677 F.3d 944
(9th Cir. 2012), and United States v. Escalante, 637 F.2d
1197 (9th Cir. 1980). Dorsey and Escalante, however, do
12
We note that neither Voris nor the government has addressed the
question of whether the First Step Act might apply on resentencing. See,
e.g., United States v. Jackson, No. 1:15 CR 453-001, 2019 WL 2524786
(N.D. Ohio June 18, 2019) (order), appeal docketed, 19-3711 (6th Cir.
July 29, 2019). We express no view on this issue.
UNITED STATES V. VORIS 21
not support Voris’s position because they did not involve
analogous circumstances.
This case is more like United States v. Monks, 774 F.2d
945 (9th Cir. 1985), where we affirmed a denial of a mistrial
because the prejudice resulting from improper testimony
was “minimal,” and the defendant had rejected the court’s
offer to give a limiting instruction. Id. at 955. In Monks, the
district court denied a mistrial motion based on two
witnesses’ references to photo line-up pictures (which
included a picture of the defendant) as “mugshots.” Id.
at 954. We held that the district court did not abuse its
discretion by denying the motion because the resulting
prejudice from the improper character evidence was minimal
and defense counsel declined a limiting instruction because
he felt it would draw more attention to the improper
evidence. Id. at 955. We determined that the prejudice was
minimal because, among other things, the improper
references were brief and were never discussed in front of
the jury, the term “mugshots” was ambiguous, and there was
substantial evidence linking the defendant to the crime. Id.
Monks supports that the district court here did not abuse
its discretion. Though the district court did not offer to give
a limiting instruction, Voris did not ask for one and did not
object when the court decided that a limiting instruction
would be improper because it would highlight the testimony.
Nor does Voris argue on appeal that the district court should
have given a limiting instruction. He has thus tacitly
conceded that the district court’s decision not to give a
limiting instruction was proper because it would have drawn
more attention to the improper evidence.
Also like in Monks, any prejudice from Officer Smith’s
improper testimony was minimal. The “criminal history”
remark was brief and vague, as it did not specifically identify
22 UNITED STATES V. VORIS
Voris’s criminal history. The government also minimized
any prejudice by immediately redirecting Officer Smith’s
testimony. And the jurors knew that Voris had a criminal
history because they knew he was a convicted felon and that
there was a warrant for his arrest.
Finally, we note that the evidence against Voris was very
strong. Voris shot at Officer Garcia after Officer Garcia
identified himself as a police officer and Voris shot four
times toward the door knowing that officers were standing
outside the door. An officer also testified that almost
immediately after the incident Voris admitted that he had
shot at the marshals and asked what charges he would be
facing. The jury also watched Voris’s recorded post-arrest
interview in which he stated that he intended to die that day
and that “at the end of the day I didn’t give a f*** about those
f***ing Marshals or anything . . . .”
Given the circumstances and the evidence, any resulting
prejudice from the improper testimony was minimal. We
therefore hold that the district court did not abuse its
discretion in denying the motions for a mistrial and new trial.
IV. Conclusion
In sum, we conclude that one assault conviction and one
§ 924(c) conviction must be reversed, and we reject Voris’s
remaining arguments. We thus remand to the district court
with instructions to vacate one assault conviction and one
§ 924(c) conviction and resentence Voris.
REVERSED in part and REMANDED with
instructions.