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                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-15303
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:15-cr-00246-WS-B-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                    versus

CHARLES ANDREW GOSS RICHARDS,
a.k.a. Junior,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Alabama
                      ________________________

                            (December 7, 2017)

Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Charles Andrew Goss Richards appeals his convictions and total sentence of

630 months of imprisonment after pleading guilty to one count of conspiring to

distribute methamphetamine, in violation of 21 U.S.C. § 846, and two counts of

discharging a firearm during and in relation to and in furtherance of a crime of

violence or drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). After

careful review, we affirm.

                                        I.

      On September 20, 2015, Richards and his girlfriend arrived in a stolen van at

“Kelly’s Clay Pit” near Foley, Alabama, to sell another couple $25’s worth of

methamphetamine ice. After the exchange, Richards accosted one of the buyers

for “talking bad” about him in the county jail. Richards then pulled out a gun and

shot the man in the arm. As the man began to run away, Richards shot at him

again but missed. Turning to the other buyer, Richards told her he was going to

take her car and grabbed the keys from her hand. Richards and his girlfriend then

drove away in the two cars, leaving the two buyers.         Eventually, Richards’s

girlfriend picked him up in the stolen van. They were later apprehended after

leading police on a high-speed chase.

      After his arrest, Richards was indicted on five counts: (1) conspiring to

distribute methamphetamine, in violation of 21 U.S.C. § 846; (2) distributing

methamphetamine, in violation of 21 U.S.C. § 841(a)(1); (3) discharging a firearm


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during and in relation to and in furtherance of a drug-trafficking crime (distributing

methamphetamine), in violation of 18 U.S.C. § 924(c)(1)(A); (4) carjacking, in

violation of 18 U.S.C. § 2119; and (5) discharging a firearm during and in relation

to and in furtherance of a crime of violence (carjacking). Under a written plea

agreement, Richards agreed to plead guilty to the drug-conspiracy offense (Count

1) and the two firearms offenses (Counts 3 and 5). The government agreed to

dismiss the remaining counts.

      At the change-of-plea hearing, Richards was informed that he faced up to 20

years of imprisonment on Count 1, a mandatory consecutive term of at least 10

years on Count 3, and a mandatory consecutive term of at least 25 years on Count

5. After confirming that he understood the penalties he faced and the elements of

the offenses, Richards admitted to the facts of his offense conduct summarized

above and then pled guilty to Counts 1, 3, and 5 of the indictment. The district

court accepted the plea as knowing and voluntary.

      Richards’s presentence investigation report calculated an advisory guideline

range of 210 to 240 months for the drug-conspiracy offense, plus mandatory

consecutive terms of 10 and 25 years for the firearms offenses.

      At his sentencing, Richards argued that it violated the Fifth Amendment’s

Double Jeopardy Clause to impose multiple terms of imprisonment for a single act

of discharging a firearm.     The district court rejected this argument and then


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sentenced him to 210 months on Count 1, 120 months on Count 3, and 300 months

on Count 5, with all terms to be served consecutively. Richards now appeals.

                                              II.

       On appeal, Richards offers two reasons why, in his view, the district court

could not have imposed multiple, consecutive punishments for the two § 924(c)

convictions. First, he asserts that Count 5 lacks a sufficient evidentiary basis

because he was not convicted of the predicate crime of violence (carjacking),

which the government dismissed as part of his plea. Second, he maintains that his

§ 924(c) convictions and corresponding sentences violate the Fifth Amendment’s

guarantee of protection against multiple punishments for the same offense because,

in his view, both firearm convictions were based on the same predicate offense.1


       1
           The government contends that Richards has waived his right to raise these arguments
on appeal for two distinct reasons. First, the government cites the plea agreement’s limited
waiver of Richards’s right to file a direct appeal challenging “his guilty plea, conviction, or
sentence.” After Richards filed his initial brief on appeal, the government filed a motion to
dismiss the appeal as barred by the waiver. That motion was carried with the case, and the
government then filed its response brief. We find that the wavier does not apply because
Richards primarily challenges his convictions and, to the extent the waiver applies to such
arguments, the district court did not specifically address that aspect of the waiver during
Richards’s plea colloquy. See United States v. Bushert, 997 F.3d 1343, 1350–51 (11th Cir.
1993). Accordingly, we DENY the government’s motion to dismiss. In any case, even if the
waiver applies, the government has already addressed the merits of the appeal, so we will not be
depriving the government of the central benefit of its bargain by deciding the merits. See United
States v. Buchanan, 131 F.3d 1005, 1008 (11th Cir. 1997).

        Second, the government argues that Richards waived his arguments by pleading guilty.
See United States v. Smith, 532 F.3d 1125, 1127 (11th Cir. 2008) (“The general rule is that a
guilty plea waives all non-jurisdictional challenges to a conviction”). The government is likely
correct in this regard. See United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986)
(holding that a guilty plea waived the argument that “there was an insufficient factual basis to
support the indictment”); Smith, 532 F.3d at 1127–28 (holding that a guilty plea waives some,
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       We review claims of double jeopardy and questions of statutory

interpretation de novo. United States v. Bobb, 577 F.3d 1366, 1371 (11th Cir.

2009); United States v. Rahim, 431 F.3d 753, 756 (11th Cir. 2005).

       The Fifth Amendment’s Double Jeopardy Clause protects against, among

other things, multiple punishments for the same offense. Bobb, 577 F.3d at 1371.

The multiple-punishment inquiry focuses on congressional intent.                       See id.

(“Congress, of course, has the power to authorize multiple punishments arising out

of a single act or transaction.”).        If the same act or transaction violates two

statutory provisions, courts must first determine whether the legislature clearly

intended each violation to be a separate offense with separate punishments. See id.

at 1371–72. When legislative intent is unclear, we apply the “same elements” test

established in Blockburger v. United States, 284 U.S. 299, 304 (1932). United

States v. Smith, 532 F.3d 1125, 1128 (11th Cir. 2008). “Under this test, two

offenses are different for the purposes of double jeopardy analysis if each requires

proof of an additional fact which the other does not.” Id. (internal quotation marks

omitted).

       Section 924(c) provides that “any person who, during and in relation to any

crime of violence . . . for which the person may be prosecuted in a court of the


but not all, double-jeopardy challenges). However, we would engage in a similar double-
jeopardy analysis to determine if Richards waived his argument, see Smith, 532 F.3d at 1128–29,
and Richards is not entitled to relief on the merits in any event, so we proceed directly to the
merits.
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United States, uses or carries a firearm, or who, in furtherance of any such crime,

possesses a firearm” shall be sentenced to an additional term of imprisonment

depending on the facts. 18 U.S.C. § 924(c)(1)(A). A minimum penalty of 10 years

applies if the firearm was discharged, while a lesser penalty applies if the firearm

was brandished or merely possessed. Id. § 924(c)(1)(A)(iii). In the case of a

“second or subsequent” § 924(c) conviction, the defendant must be sentenced to at

least 25 years. Id. § 924(c)(1)(C)(i). This enhanced penalty provision “applies to

multiple offenses, even if the offenses are charged in a single indictment.” United

States v. Hamilton, 953 F.2d 1344, 1346 (11th Cir. 1992) (citing United States v.

Rawlings, 821 F.2d 1542, 1545–46 (11th Cir. 1987)).

      Notably, the penalties for violating § 924(c) must be “stacked.” That is,

each term of imprisonment for a § 924(c) offense must be imposed consecutive to

the term of imprisonment for any other offense, including the underlying predicate

offense. 18 U.S.C. § 924(c)(1)(D)(ii).

      Here, Richards has not shown that the district court erroneously imposed

multiple punishments for the two § 924(c) convictions. Richards first argues that

his conviction on Count 5 cannot stand because he was not convicted of the

predicate carjacking offense. But a “conviction under section 924(c) does not

require either that the defendant be convicted of or charged with the predicate

offense.” United States v. Frye, 402 F.3d 1123, 1127 (11th Cir. 2005). Instead,


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§ 924(c) “requires only that the drug trafficking crime be one that ‘may be

prosecuted.’” Id. (quoting 18 U.S.C. § 924(c)(1)(A)). Richards admitted as part of

his guilty plea that he in fact committed the offense of carjacking, even if he was

not convicted of that offense.     Thus, the fact that he was not convicted of

carjacking does not undermine his § 924(c) conviction for discharging a firearm

during and in relation to the predicate offense of carjacking. See id. at 1127–28.

      Richards’s second contention—that it violates the Double Jeopardy Clause

to base multiple § 924(c) convictions on the same predicate offense—is misguided

because his two § 924(c) convictions rest on distinct predicate offenses.

      In Rahim, we held that two or more convictions under § 924(c) can arise

from the same course of conduct when the convictions are based are distinct

predicate crimes. 431 F.3d at 757–58 (declining to “reach the issue whether

predicate offenses consisting of ‘virtually the same conduct’ can support multiple

924(c) convictions”).    And multiple § 924(c) convictions do not violate the

Double Jeopardy Clause so long as “each of the two offenses charged requires

proof of an additional fact”—the predicate crime—“which the other does not.”

Id. at 758 (internal quotation marks omitted). Thus, in Rahim, we held that the

defendant’s multiple § 924(c) convictions for (1) use of a firearm during a robbery

and (2) use of a firearm during a carjacking, did not violate the Double Jeopardy

Clause, even though they arose from a single course of conduct, because each


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conviction required proof of a different predicate crime of violence. Id.

      Here, Richards’s multiple § 924(c) convictions do not violate the Double

Jeopardy Clause. Even though his convictions arose out of the same course of

conduct, each conviction required proof of an element the other does not. See id at

757–58; see also Blockburger, 284 U.S. at 304. Specifically, Count 3 charged

Richards with discharging a firearm during and in relation to and in furtherance of

the predicate crime of selling methamphetamine. Count 5 charged Richards with

discharging a firearm during and in relation to and in furtherance of the predicate

crime of carjacking. Thus, Richards is incorrect that his § 924(c) convictions were

based on the same predicate offense. And because his § 924(c) convictions rest on

distinct predicate offenses, no double-jeopardy violation occurred. See Rahim, 431

F.3d at 758.

      In sum, the district court properly concluded that Richards’s multiple

§ 924(c) convictions did not violate the Double Jeopardy Clause because they were

based on distinct predicate offenses. For that reason, we likewise find no error in

the court’s imposition of multiple, consecutive terms of imprisonment, as directed

by the statute. See 18 U.S.C. § 924(c)(1)(C)(i), (D)(ii). Accordingly, Richards’s

convictions and total sentence are affirmed.

      AFFIRMED.




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