                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 06-2814
      ___________

United States of America,             *
                                      *
            Appellant,                *   Appeals from the United States
                                      *   District Court for the
      v.                              *   Western District of Missouri.
                                      *
Michael Hatcher,                      *
                                      *
           Appellee.                  *
      ___________

   No. 06-3099
     ___________

United States of America,             *
                                      *
            Appellant/Cross-Appellee, *
                                      *
     v.                               *
                                      *
Angelo Porrello,                      *
                                      *
            Appellee/Cross-Appellant. *
     ___________

    Nos. 06-2819/3098
     ___________

United States of America,             *
                                      *
            Appellant/Cross-Appellee, *
                                      *
      v.                             *
                                     *
Joseph Anthony Porrello,             *
                                     *
           Appellee/Cross-Appellant. *
                               ___________

                              Submitted: May 16, 2007
                                 Filed: August 28, 2007
                                  ___________

Before BYE, BEAM, and SMITH, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

       A jury convicted Angelo Porrello, Joseph Porrello, and Michael Hatcher of a
series of armed robberies in Kansas City, Missouri. The district court sentenced
Joseph Porrello to 300 months and one day of imprisonment and Hatcher to 360
months' imprisonment. The district court also denied the Porrellos' motions to treat a
sentencing enhancement provision of 18 U.S.C. § 924(c) as an element of the offense
to be decided by the jury. The government appeals Joseph Porrello's and Hatcher's
sentences. The Porrellos challenge the district court's interpretation of § 924(c).We
conclude that the district court correctly found that § 924(c) applied but applied the
statute incorrectly. We therefore reverse and remand for resentencing.

                                    I. Background
       A detailed account of the facts can be found in our prior opinion, United States
v. Hatcher, 323 F.3d 666 (8th Cir. 2003). Relevant to this appeal, the defendants were
each convicted of two counts of using a firearm during a crime of violence in violation
of § 924(c), which states that a defendant who uses or carries a firearm in relation to
a crime of violence is subject to a sentence of not less than 25 years in prison for a



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second or subsequent conviction. United States v. Carter, 481 F.3d 601, 607 (8th Cir.
2007).

      On remand, the trial court determined that the second-or-subsequent-conviction
provision of § 924(c) applied and thus sentenced the defendants to 300 months'
imprisonment for the firearm offenses. Section 924(c), inter alia, provides that a
defendant's "second or subsequent conviction" for a firearm offense during a crime of
violence triggers a mandatory minimum sentence of 25 years in prison. Carter, 481
F.3d at 607–08. A sentence applying § 924(c) must be served consecutively with the
sentence imposed for their other violent crimes. Id. The district court sentenced
Hatcher to the mandated 300-months' imprisonment for the firearm convictions but
only 60 months' imprisonment for his underlying offenses—conspiracy and two
counts of interfering with interstate commerce by armed robbery. Joseph Porrello was
also sentenced to 300 months' imprisonment for the firearm convictions but only
sentenced to one day of imprisonment for his underlying offenses—conspiracy, two
counts of interfering with interstate commerce by armed robbery, and two counts of
money laundering. Both parties appeal the district court's interpretation and
application of § 924(c).

                                  II. Discussion
      The government avers that the district court imposed an unreasonable sentence.
Angelo and Joseph Porrello cross-appeal, arguing that the district court erred in
construing § 924(c) as a sentencing enhancement rather than as an element of the
offense charged.1




      1
       The Porrellos also raise a host of constitutional arguments, claiming that their
sentences violate substantiative due process, the separation of powers, and the Eighth
Amendment's cruel-and-unusual-punishment provision. We find each of these
arguments lacking sufficient merit to warrant discussion.

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                                         A. Sentence
         We review the district court's application of the Guidelines to the facts de novo;
its factual findings for clear error; and the ultimate sentence for reasonableness.
United States v. Tjaden, 473 F.3d 877, 879 (8th Cir. 2007); United States v. Watson,
480 F.3d 1175 (8th Cir. 2007). Whether a sentence is reasonable is reviewed for abuse
of discretion. Watson, 480 F.3d at 1177. "A sentencing court abuses its discretion if
it fails to consider a relevant factor that should have received significant weight, gives
significant weight to an improper or irrelevant factor, or considers only the
appropriate factors but commits a clear error of judgment in weighing those factors."
Id.

       Section 924(c) required the district court to sentence Joseph Porrello and
Hatcher to 300 months' imprisonment for using a firearm during their second or
subsequent conviction; this 300-months' sentence must be served consecutively with
their sentences for related violent crimes. The district court, taking into account the
length of the mandatory consecutive sentence, dramatically reduced the sentence for
the related violent crimes. The court sentenced Joseph Porrello to 300 months'
imprisonment for his firearm convictions but only one day of imprisonment for the
related crimes of conspiracy, two counts of interfering with interstate commerce by
armed robbery, and two counts of money laundering. Similarly, Hatcher was
sentenced to 300 months' imprisonment for the firearm convictions but only 60
months' imprisonment for conspiracy and two counts of interfering with interstate
commerce by armed robbery.

       The district court thus apparently conflated the sentences for the § 924(c)
offenses and the related violent crimes. The Guidelines are unequivocal: a sentence
that "run[s] consecutively to any other term of imprisonment, shall be determined by
that statute and imposed independently." U.S.S.G. § 5G1.2(a) (emphasis added);
United States v. Roberson, 474 F.3d 432 (7th Cir. 2007) ("The district judge was
therefore required to determine the proper sentence for the bank robbery entirely

                                           -4-
independently of the section 924(c)(1) add-on;"); United States v. Gregg, 451 F.3d
930 (8th Cir. 2006).

       Viewing the consecutive sentences independently, the district court imposed an
unreasonable sentence. Joseph Porrello received a one-day sentence—an extraordinary
variance from a Guidelines range of 151 to 121 months—for conspiracy, two counts
of interfering with interstate commerce by armed robbery, and two counts of money
laundering. Hatcher received a 60-month sentence—an extraordinary variance from
a Guidelines range of 210 to 240 months—for conspiracy and two counts of
interfering with interstate commerce by armed robbery.

       The district court considered the severity of the 300-months firearm sentences
in justifying its extraordinary variance. "[U]nder the Sentencing Guidelines, a
mandatory consecutive sentence under 18 U.S.C. § 924(c) is an improper factor to
consider in making a departure, or fashioning the extent of a departure." United States
v. Working, 287 F.3d 801, 807 (9th Cir. 2002). Because the district court gave
significant weight to an improper factor, we conclude that Joseph Porrello's and
Hatcher's sentences are unreasonable and consequently remand for resentencing.

                         B. Second or Subsequent Conviction
       The Porrellos cross-appeal, alleging that the district court erred by construing
§ 924(c) as a sentencing enhancement provision rather than as an independent element
of the offense. We review de novo the district court's interpretation of § 924(c). United
States v. Allee, 282 F.3d 997 (8th Cir. 2002).

      Section 924(c) provides, inter alia, that a defendant's "second or subsequent
conviction" for a using a firearm during a crime of violence triggers a mandatory
minimum of 25 years in prison. In Deal, the Supreme Court determined that these
multiple convictions can occur in a single proceeding. United States v. Deal, 508 U.S.
129 (1993). The Porrellos acknowledge this holding but aver that more recent cases

                                          -5-
from the Court have clarified Deal's holding, averring that the second-or-subsequent-
conviction provision is properly viewed as an element of the charged offense, not as
a sentencing enhancement as we have implied. See e.g. Allee, 282 F.3d at 997; United
States v. Street, 257 F.3d 869, 870 (8th Cir. 2001). In support of their proposition, the
Porrellos rely upon Castillo v. United States, 530 U.S. 120 (2000), where the Court
found that the firearm provision of § 924(c) constituted an element of the offense
rather than a sentencing enhancement. The Porrellos aver that the logic of Castillo
requires that the second-or-subsequent-conviction provision should be treated as an
element—the same as the firearms provision. We disagree.

       The Court in Castillo differentiated firearms provisions that consider the type
of firearm used from provisions addressing repeated offenses. Id. ("We cannot say that
courts have typically or traditionally used firearm types as sentencing factors . . . ").
Recidivism provisions, such as the second-or-subsequent-conviction provision at issue
here, are commonly sentencing factors. Almendarez-Torres v. United States, 523 U.S.
224, 244 (1998) ("[R]ecidivism-is a traditional, if not the most traditional, basis for
a sentencing court's increasing an offender's sentence."). Indeed, Castillo itself notes
that "factors (such as recidivism) [] ordinarily pertain only to sentencing." Castillo,
530 U.S. at 124 (parenthesis in original). Further, as Castillo acknowledges, turning
this recidivism provision into an element of the offense would "complicate a trial or
risk unfairness," because the government would be required to prove to the jury the
commission of prior offenses. Id. at 126. The introduction of relevant sentencing facts
during the guilt phase could be unnecessarily prejudicial to criminal defendants and,
like the Court, "we do not believe, other things being equal, that Congress would have
wanted to create this kind of unfairness in respect to facts that are almost never
contested." Almendarez-Torres, 523 U.S. at 235. For these reasons, we reaffirm that
the recidivism provision of § 924(c) is a sentencing factor rather than an element of
an offense. United States v. Anglin, 284 F.3d 407 (2d. Cir. 2002) ("The Court's
decision in Deal makes sense only if the fact of a previous 'conviction' [] is a



                                          -6-
sentencing factor, and not an element of an additional offense that Congress intended
to create.").

       We reject the Porrellos' argument that they are not recidivists because their
multiple convictions occurred in a single prosecution. Deal's main holding—that
multiple convictions in a single proceeding trigger the second-or-subsequent-
conviction enhancement— remains good law. The defendants played significant roles
in the armed robbery of eleven businesses, including five jewelry stores. Just because
the defendants were not apprehended and prosecuted in sequential proceedings for
their various offenses does not make their repeated conduct less recidivist for
sentencing purposes. Deal controls.

                                   III. Conclusion
      After a careful review of the record, we affirm the district court's interpretation
of § 924(c), but remand for resentencing consistent with this opinion.
                        ______________________________




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