United States v. Strickland , 261 F.3d 1271 ( 2001 )

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert STRICKLAND, Defendant-Appellant.
No. 97-5235.
United States Court of Appeals,
Eleventh Circuit.
Aug. 17, 2001.
Appeal from the United States District Court for the Southern District of Florida. (No. 95-08118-CR-KLR),
Kenneth L. Ryskamp, Judge.
Before TJOFLAT, HILL and POLITZ*, Circuit Judges.
TJOFLAT, Circuit Judge:
This is a direct appeal from multiple convictions for transportation and use of an explosive device
in violation of 18 U.S.C. §§ 844(d)1 and 924(c).2 Although the defendant raises a host of issues on appeal,3
*
Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
1
18 U.S.C. § 844(d) provides:
(d) Whoever transports or receives, or attempts to transport or receive, in interstate or
foreign commerce any explosive with the knowledge or intent that it will be used to kill,
injure, or intimidate any individual or unlawfully to damage or destroy any building,
vehicle, or other real or personal property, shall be imprisoned for not more than ten
years, or fined under this title, or both; and if personal injury results to any person,
including any public safety officer performing duties as a direct or proximate result of
conduct prohibited by this subsection, shall be imprisoned for not more than twenty years
or fined under this title, or both; and if death results to any person, including any public
safety officer performing duties as a direct or proximate result of conduct prohibited by
this subsection, shall be subject to imprisonment for any term of years, or to the death
penalty or to life imprisonment.
2
18 U.S.C. § 924(c)(1) provides:
(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this
subsection or by any other provision of law, any person who, during and in relation to
any crime of violence or drug trafficking crime (including a crime of violence or drug
trafficking crime that provides for an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device) for which the person may be prosecuted in a
court of the United States, uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the punishment provided for such crime of
violence or drug trafficking 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
the only claim that merits discussion is whether multiple counts and consecutive sentences for the violations
of sections 844(d) and 924(c), based on a single course of conduct, violate the Double Jeopardy Clause. We
hold that the imposition of consecutive sentences under these two provisions does not violate the double
jeopardy clause, and therefore, affirm the convictions and sentences.
I.
Robert A. Strickland was arrested in Ohio on October 14, 1995 for manufacturing, transporting, and
affixing a pipe bomb to the vehicle of his ex-wife's new husband. A Southern District of Florida grand jury
returned a five count indictment against the defendant as follows: knowing possession of an unregistered
destructive device, in violation of 26 U.S.C. §§ 5681(d) and 5871 (Count One); knowing possession of a pipe
bomb after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)(Count
Two); transporting explosive materials in interstate commerce, in violation of 18 U.S.C. § 844(d) (Count
Three); knowingly carrying an explosive during the commission of the crime of possessing an unregistered
destructive device, in violation of 18 U.S.C. § 844(h)(2) (Count Four); and knowingly using and carrying
a pipe bomb during and in relation to a crime of violence, in violation of section 924(c)(1) (Count Five).
Adopting the magistrate judge's report and recommendation, the district court dismissed Count One
as duplicative of Count Four. Strickland pled not guilty to the remaining offenses and proceeded to trial. The
jury convicted him of Count Four but was unable to reach a verdict on the remaining counts. Strickland filed
a motion for judgment of acquittal, which the district court denied. He was retried and convicted on Counts
Two, Three, and Five. The court sentenced Strickland to concurrent 100-month terms of imprisonment on
Counts Two and Three, 60 months' imprisonment on Count Four, and 360 months' imprisonment on Count
Five. The sentences on Counts Four and Five were to be served concurrently, but following the sentences
imposed on Counts Two and Three. Strickland now appeals.
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than
10 years.
3
The defendant asserts seven other challenges to his convictions: (1) the district court erred by
denying his motion to suppress incriminating statements he made to federal agents and to exclude
evidence obtained from his hotel room; (2) the evidence was insufficient to sustain a conviction under
section 924(c); (3) the evidence was insufficient to sustain a conviction under section 844(d); (4) the
court's instructions to the jury on the definition of "firearm" and "explosive" were erroneous; (5) the
court abused its discretion by admitting extrinsic act evidence under Federal Rule of Evidence 404(b);
(6) the court abused its discretion by denying the defendant's motion to sever; and (7) Count Four, which
charged the defendant with carrying an explosive while possessing an unregistered destructive device in
violation of 18 U.S.C. 844(h)(2), does not state an offense. The government concedes that Count Four
does not state an offense and accordingly, the Count Four conviction is vacated.
II.
Strickland maintains that the convictions and sentences imposed violate the Double Jeopardy Clause
of the Fifth Amendment because Counts Three, Four, and Five "all charge [him] with carrying the same
explosive." This single course of conduct is insufficient, he contends, to support multiple indictments.
Possible violations of the Double Jeopardy Clause raise pure questions of law that we review de novo. See
United States v. Rivera, 77 F.3d 1348, 1350 (11th Cir.1996). Strickland submits that the single course of
conduct could not support multiple counts under section 924(c). He is correct, however, he was not charged
with multiple violations of that section. Therefore, his reliance on cases such as United States v. Parra, 2
F.3d 1058 (10th Cir.1993), is misplaced. In Parra, the defendant successfully challenged multiple
convictions under section 924(c) based on separate firearms used during a single course of conduct as
prohibited by the Double Jeopardy Clause. See id. at 1070-71. Aside from the question of whether this
Circuit would decide Parra in the same manner, the case is factually inapposite on its facts. Strickland has
only been charged with one violation of section 924(c), and there is no case law that prohibits a single course
of conduct from serving as the basis for both a predicate offense and its enhancement. "Where the language
Congress chose to express its intent is clear and unambiguous, that is as far as we go to ascertain its intent
because we must presume that Congress said what it meant and meant what it said." United States v. Steele,
147 F.3d 1316, 1318 (11th Cir.1998) (en banc).
Section 924(c)(1) expressly provides that the punishments imposed for "use of a deadly or dangerous
weapon or device" shall be "in addition to the punishment provided for [the predicate] crime of violence."
Where a legislature specifically mandates cumulative punishments under two statutes, regardless of whether
those two statutes proscribe the same course of conduct, the trial court must impose cumulative punishment.
See United States v. Cespedes, 151 F.3d 1329, 1333 (11th Cir.1998) (stating that the sentence under section
924(c) must be served consecutively with the sentences imposed for defendant's other offenses).
Other circuits concur in this result and have imposed consecutive sentences for section 924(c)
violations where the predicate offense involved the same prohibited firearm or destructive device. See United
States v. Collins, 109 F.3d 1413, 1420 (9th Cir.1997) (holding that where the legislature specifically
authorizes cumulative punishments under two statutes, the trial court may impose such punishment regardless
of whether those two statutes proscribe the same conduct); United States v. Holdridge, 30 F.3d 134 (6th
Cir.1994) (unpublished table decision) (same); United States v. Swapp, 934 F.2d 326 (10th Cir.1990)
(unpublished table decision) (holding that the imposition of consecutive sentences for section 924(c)
violations are mandatory, and, therefore, the lower court committed reversible error by imposing concurrent
sentences). Although it may seem an unintended consequence of the statutory scheme to enhance a penalty
for using explosives based on a predicate crime involving those same explosives, the language is clear; thus,
this Court's statutory interpretation inquiry is at an end. Consecutive sentences for convictions under sections
924(c) and 844(d) based on the same course of conduct involving the proscribed explosives do not violate
the Double Jeopardy Clause.
For the foregoing reasons, the convictions and sentences imposed by the district court on Counts
Two, Three, and Five are AFFIRMED. Count Four is VACATED as it failed to state an offense. On receipt
of our mandate, the district court shall DISMISS Count Four.
SO ORDERED.