                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                         APR 3 1998
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT




UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                      No. 96-3278
v.

AVRAM L. GOTTLIEB, aka David
Gottlieb,

             Defendant-Appellant.




                  Appeal from the United States District Court
                           for the District of Kansas
                          (D.C. No. 95-CR-40023-01)


Jill M. Wichlens, Assistant Federal Public Defender, Denver, Colorado (Michael
G. Katz, Federal Public Defender, Denver, Colorado, with her on the brief), for
Appellant.

Gregory G. Hough, Assistant United States Attorney, Topeka, Kansas (Jackie N.
Williams, United States Attorney, Topeka, Kansas, with him on the brief) for
Appellee.


Before PORFILIO, BRORBY, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.
                                I. BACKGROUND

      Defendant Avram Gottlieb pleaded guilty to bank robbery, in violation of

18 U.S.C. § 2113(a). Prior to Gottlieb’s plea, the government filed an

information seeking enhancement of his sentence pursuant to 18 U.S.C. § 3559(c),

popularly known as the “Three Strikes” statute. Congress enacted the Three

Strikes statute in 1994 as part of a comprehensive crime control bill. See Violent

Crime Control & Law Enforcement Act of 1994, Pub. L. No. 103-322, § 70001,

108 Stat. 1796, 1982 (codified at 18 U.S.C. § 3559(c)). The statute requires the

district court to sentence to life in prison any person who is convicted in federal

court of a “serious violent felony” if that person has previously been convicted in

state or federal court of two or more “serious violent felonies.” 18 U.S.C.

§ 3559(c)(1). Robbery is generally considered a “serious violent felony” for

purposes of the Three Strikes statute. See id. § 3559(c)(2)(F).

      Gottlieb had two previous convictions for “serious violent felonies.” By

pleading guilty to robbery, his third “strike,” Gottlieb became subject to the Three

Strikes statute. One of the two prior convictions the government relied on in

seeking the sentence enhancement was a 1987 federal conviction for conspiracy to

obstruct and affect commerce by robbery, in violation of 18 U.S.C. § 1951. At

the sentencing hearing, Gottlieb contended that this offense, although considered

a “serious violent felony,” should not be counted as a “strike” because it


                                         -2-
constitutes a “nonqualifying felony” under § 3559(c)(3)(A) of the Three Strikes

statute. The district court rejected Gottlieb’s argument and applied the Three

Strikes statute to sentence Gottlieb to life in prison.

      On appeal, Gottlieb argues that (1) the district court erred in sentencing

him under the Three Strikes statute because his 1987 offense constitutes a

“nonqualifying felony” and (2) the district court erred in failing to make his

restitution obligation joint and several with that of a codefendant. This court

agrees that Gottlieb should not have been sentenced under the Three Strikes

statute. We therefore vacate Gottlieb’s sentence and remand to the district court

for resentencing. We further remand to the district court for clarification of the

restitution order.

                                  II. DISCUSSION

                              A. Three Strikes Statute

      Gottlieb contends his 1987 conviction 1 for conspiracy to commit robbery

constitutes a “nonqualifying felony” under 18 U.S.C. § 3559(c)(3)(A), thereby

making the Three Strikes statute inapplicable. Section 3559(c)(3)(A) provides:

            Robbery, an attempt, conspiracy, or solicitation to commit
      robbery . . . shall not serve as a basis for sentencing under this
      subsection if the defendant establishes by clear and convincing
      evidence that--


      1
       Gottlieb does not challenge the other conviction the government relied on
in seeking the sentence enhancement.

                                           -3-
                (i) no firearm or other dangerous weapon was used in the
       offense and no threat of use of a firearm or other dangerous weapon
       was involved in the offense; and
                (ii) the offense did not result in death or serious bodily injury
       . . . to any person.

18 U.S.C. § 3559(c)(3)(A). The government concedes that the 1987 offense did

not result in death or serious bodily injury and that Gottlieb therefore satisfied the

second prong of § 3559(c)(3)(A). The government and Gottlieb disagree,

however, whether Gottlieb has met his burden of satisfying the first prong of that

section, by showing the 1987 offense did not involve the “use” or “threat of use”

of a firearm. 2

       1.     Background of 1987 Offense

       At the sentencing hearing, the district court began its inquiry into whether

the Three Strikes statute applied by asking the government if it had any testimony

or presentation on the issue. The government responded by introducing certified

copies of the judgments from the 1987 conviction and the other conviction on

which it relied. The government then called two witnesses to testify as to the

facts of the underlying convictions.




       The government does not contend that a “dangerous weapon” other than a
       2

firearm was involved in the 1987 offense. Therefore, we limit our discussion
under § 3559(c)(3)(A)(i) to whether the 1987 offense involved the use or threat of
use of a firearm.

                                           -4-
      With respect to the 1987 conviction, the government called FBI Agent

Robert Novotny, who was the case agent assigned to investigate the offense.

According to Agent Novotny, an informant told the FBI in 1986 that Robert

Colley, a Missouri prison inmate, was planning to abduct his ex-wife and the

teenage son of a Kansas City bank executive. Because he was incarcerated,

Colley needed assistance to carry out the scheme.

      Two undercover agents posed as persons willing to assist in the scheme.

The agents were to be in contact with a person on the East Coast, who turned out

to be Gottlieb. After several phone calls between the agents and Gottlieb,

Gottlieb agreed to fly to Kansas City to meet with the agents. Gottlieb asked the

agents to provide him with a firearm when he got to Kansas City because he

would be unable to bring one with him on the airplane. According to Agent

Novotny, Gottlieb “wanted a weapon available for him. . . . [T]hey wanted to

show, as I understand it, a true threat to the ex-wife and to get the extortion

completed against the bank president, against the bank officer.”

      Agent Novotny further testified that Gottlieb traveled to Kansas City and

met with the agents at a hotel, where they discussed the plan and made phone

calls to the bank to determine if the executive’s son was at home. 3 The agents

then took Gottlieb to their car, which was in the hotel parking lot. In the trunk of


      3
          Agent Novotny did not state who made the phone calls.

                                          -5-
the car, the agents had placed a gym bag containing an inoperative firearm. In

addition to the two undercover agents, other agents, including Novotny, were in

the vicinity. When Gottlieb reached for the firearm, but before touching it, the

agents arrested him. Gottlieb was wearing a bulletproof vest when he was

arrested.

      After Agent Novotny testified and the government announced that it had no

further evidence, Gottlieb took the stand in his own defense. He testified that his

only role in the offense was to transport the ransom money to a bank; he was not

to be involved in the actual kidnapping. Gottlieb further testified that, upon

arriving in Kansas City, he met with the two undercover agents at a hotel and

discussed the plan. As the three were walking out of the hotel, there was a

discussion about the fact that Gottlieb would be carrying a substantial amount of

money. According to Gottlieb, the agents then offered him a firearm. Gottlieb

testified: “I was like, whatever. I’m going to be on an airplane in three hours . . .

so whatever. . . . I couldn’t have taken it to the airport anyway. I would have had

to throw it away immediately.” Gottlieb testified that one of the agents then

opened the trunk of the car, said there was a gun in the trunk, and pointed at the

trunk. When Gottlieb turned to look, he was arrested.

      The government offered no rebuttal evidence. The government argued that

Gottlieb had not met his burden of proving the 1987 offense was a “nonqualifying


                                          -6-
felony,” stating: “[T]here is just absolutely no way that based upon the record in

this case the Court could support that finding.” Gottlieb, on the other hand, urged

the court to find that the 1987 offense constitutes a “nonqualifying felony”

because no firearm was involved in the offense.

      The district court ruled from the bench, first finding generally that the

government’s testimony was more believable than Gottlieb’s. The court then

concluded that “the defendant has failed to establish by clear and convincing

evidence that his prior offenses constitute non-qualifying felonies under 18

U.S.C. § 3559(c)(3)([A]). The defendant is, therefore, subject to mandatory life

imprisonment.” The court gave no further explanation of its ruling.

      The court next found that under the Sentencing Guidelines, Gottlieb’s total

offense level was 25 and his criminal history category was IV. Thus, based on the

Sentencing Guidelines, Gottlieb was subject to imprisonment for a term of 84 to

105 months (7 to 8.75 years). 4 See U.S.S.G. Ch. 5, Pt. A. The court, however,

sentenced him to life imprisonment.




      4
        When announcing his proposed findings of fact and tentative sentence, the
district court judge stated that the “Guideline provides life imprisonment.”
According to the Sentencing Guidelines, however, Gottlieb was subject to
imprisonment for a term of 84 to 105 months. See U.S.S.G. Ch. 5, Pt. A.

                                         -7-
      2.     Application of the Three Strikes Statute

      To satisfy the first prong of § 3559(c)(3)(A), Gottlieb must show by clear

and convincing evidence that (1) no firearm was “used” in the 1987 offense and

(2) no “threat of use” of a firearm was involved in the offense. 18 U.S.C.

§ 3559(c)(3)(A)(i). This court reviews de novo the district court’s imposition of a

sentence enhancement pursuant to the Three Strikes statute. See United States v.

Romero, 122 F.3d 1334, 1342 (10th Cir. 1997), petition for cert. filed (U.S. Nov.

18, 1997) (No. 97-6863).

      a.     “Use” of a Firearm

      The Three Strikes statute does not define the word “used” for purposes of

determining under § 3559(c)(3)(A)(i) whether a firearm was “used” in the

offense. No courts have yet construed the word in the specific context of the

Three Strikes statute. Gottlieb, however, argues the Supreme Court’s

construction of “use” in the context of 18 U.S.C. § 924(c) provides a helpful

analogy.

      Section 924(c) establishes penalties for a person who “during and in

relation to any crime of violence or drug trafficking crime . . . uses or carries a

firearm.” 18 U.S.C. § 924(c)(1) (emphasis added). The Supreme Court has held

that “§ 924(c)(1) requires evidence sufficient to show an active employment of the

firearm by the defendant, a use that makes the firearm an operative factor in


                                          -8-
relation to the predicate offense.” Bailey v. United States, 116 S. Ct. 501, 505

(1995). Elaborating on its holding, the Court noted that “active employment”

includes “brandishing, displaying, bartering, striking with, and most obviously,

firing or attempting to fire, a firearm.” Id. at 508. The term does not, however,

encompass mere possession or storage of a firearm. See id. The intent to use a

firearm, without more, also does not constitute active employment. See id. at 509.

In reaching its conclusion, the Court relied on the “‘ordinary or natural’”

meaning of the word “use,” “a meaning variously defined as ‘[t]o convert to one’s

service,’ ‘to employ,’ ‘to avail oneself of,’ and ‘to carry out a purpose or action

by means of.’” Id. at 506 (alteration in original) (quoting Smith v. United States,

508 U.S. 223, 228-29 (1993) (internal quotations omitted)).

      Application of principles of statutory construction indicates the Bailey

Court’s definition of “use” should also be applied to determine under

§ 3559(c)(3)(A)(i) whether a firearm was “used” in the offense. 5 In accordance



      5
       The government asserts the Bailey Court’s analysis of “use” was context
specific as to § 924(c) and should not be extended to § 3559(c)(3)(A)(i). The
government does not explain, however, why the Court’s approach in defining
“use” for purposes of § 924(c) should not inform our analysis. Although the
government does point out that § 924(c) defines a substantive offense whereas
§ 3559(c) provides for a sentence enhancement, the government does not
adequately explain why that distinction should affect our analysis. Certainly,
Congress does not necessarily speak in two different languages depending on
whether it is addressing a primary punishment or an enhancement. Importantly,
the government also fails to offer an alternative definition of “use.”

                                          -9-
with the first principle of statutory construction, this court begins with the plain

language of the statute. See id. As the Bailey Court recognized, the plain

meaning of the word “use” implies “action and implementation.” Id.

      Another principle of statutory construction, interpreting a word in light of

its “placement and purpose in the statutory scheme,” id., also suggests

employment of the § 924(c) meaning. As Gottlieb points out, applying the same

definition of “use” in § 3559(c)(3)(A)(i) as that employed in § 924(c) is

particularly appropriate because the Three Strikes statute specifically refers to

§ 924(c). That reference appears in the definition section of § 3559(c), where the

term “firearms use,” which is itself considered a “serious violent felony,” is

defined as

      an offense that has as its elements those described in section 924(c)
      or 929(a), if the firearm was brandished, discharged, or otherwise
      used as a weapon and the crime of violence or drug trafficking crime
      during and [in] relation to which the firearm was used was subject to
      prosecution in a court of the United States or a court of a State, or
      both.

18 U.S.C. § 3559(c)(2)(D). Although § 3559(c)(3)(A)(i) does not itself refer to

§ 924(c), it would be anomalous to define firearms “use” one way for purposes of

one subsection of the Three Strikes statute and another way for purposes of a

different subsection. 6 Cf. Bailey, 116 S. Ct. at 507 (“‘[U]sing a firearm’ should


      6
       The Ninth Circuit has apparently rejected the analogy to § 924(c). In
United States v. Morrison, 113 F.3d 1020 (9th Cir.), cert. denied, 118 S. Ct. 583

                                          -10-
not have a ‘different meaning in § 924(c)(1) than it does in § 924(d).’” (quoting

Smith v. United States, 508 U.S. 223, 235 (1993)); United Sav. Ass’n v. Timbers

of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (“Statutory construction . . .

is a holistic endeavor. A provision that may seem ambiguous in isolation is often

clarified by the remainder of the statutory scheme--because the same terminology

is used elsewhere in a context that makes its meaning clear . . . .”); Sorenson v.

Secretary of the Treasury of the United States, 475 U.S. 851, 860 (1986) (“The




(1997), the defendant argued that one of his prior convictions constituted a
“nonqualifying felony” under § 3559(c)(3)(A). See id. at 1021. The prior
conviction the defendant in Morrison sought to disqualify was a guilty plea that
included a firearm use enhancement under the California Penal Code. See id. at
1022. The enhancement applies if a defendant “‘personally uses a firearm in the
commission or attempted commission of a felony.’” Id. at 1021 n.3 (quoting Cal.
Penal Code § 12022.5(a)(1)). The court concluded that because the defendant had
previously “pleaded guilty to firearm use,” he was precluded from arguing for
purposes of § 3559(c)(3)(A) that he did not use a firearm. Id. at 1021. In other
words, whether the defendant used a firearm during the prior crime was “res
judicata,” and the defendant did not now “have the right to rebut facts necessarily
adjudicated by the earlier judgment.” Id. at 1022.
       In a footnote, the court noted the defendant had argued that for the prior
offense to qualify as a strike, “it must involve ‘use’ of a weapon as defined in
Bailey.” Id. at 1022 n.6. The court then concluded: “This is a misreading of
section 3559. Its list of ‘serious violent felon[ies]’ includes, inter alia, ‘firearms
use’ and ‘robbery.’ While the section pertaining to ‘firearms use’ makes explicit
reference to section 924(c), see 18 U.S.C. § 3559(c)(2)(D), the section pertaining
to robbery does not. See 18 U.S.C. § 3559(c)(3)(A).” Morrison, 113 F.3d at 1022
n.6 (alteration in original). The court did not define “use” for purposes of
§ 3559(c)(3)(A)(i).
       Although this court recognizes that § 3559(c)(3)(A)(i) does not specifically
refer to § 924(c), we think it is nevertheless appropriate to interpret the word
“use” consistently throughout the Three Strikes statute.

                                         -11-
normal rule of statutory construction assumes that identical words used in

different parts of the same act are intended to have the same meaning.” (internal

quotations omitted)).

      The government appears to argue that “use” should be interpreted broadly

to include both intent to use a firearm and mere possession of a firearm. Bailey,

however, teaches that the plain meaning of the word “use” does not support that

construction. See Bailey, 116 S. Ct. at 506. Further, had Congress intended to

include intent to use a firearm or possession of a firearm within the scope of §

3559(c)(3)(A)(i), it could have done so expressly, as it has in other contexts. Cf.

id. at 509 (“Congress knew how to draft a statute to reach a firearm that was

‘intended to be used’”). For example, in 18 U.S.C. § 924(d), Congress provided

for forfeiture of “[a]ny firearm or ammunition involved in or used in . . . or . . .

intended to be used in” certain specified offenses. 18 U.S.C. § 924(d)(1)

(emphasis added); cf. U.S.S.G. § 2K2.1(b)(5) (increasing offense level for certain

firearm offenses if defendant “used or possessed” a firearm in connection with

another felony or “possessed” a firearm with “intent” that it would be “used or

possessed” in connection with another felony). Because Congress knew how to

address intent to use a firearm and possession of a firearm, but chose not do so in

§ 3559(c)(3)(A)(i), it would be inappropriate for this court to effectively usurp

the legislative function by interpreting “use” broadly to include those terms.


                                          -12-
      Based on the language and context of the Three Strikes statute, 7 this court


      7
        The legislative history does very little to clarify the meaning of the words
“use” and “threat of use” in § 3559(c)(3)(A)(i). Congress passed the Three
Strikes statute in 1994 as part of a larger crime bill, H.R. 3355. See Violent
Crime Control & Law Enforcement Act of 1994, Pub. L. No. 103-322, § 70001,
108 Stat. 1796, 1982 (codified at 18 U.S.C. § 3559(c)). As originally introduced
in 1993, H.R. 3355 did not contain a three strikes provision. See H.R. 3355, 103d
Cong. (as introduced Oct. 26, 1993).
       After H.R. 3355 passed the House, the Senate amended it by inserting the
text of S. 1607, which contained a three strikes provision. See H.R. 3355, 103d
Cong. § 511 (as amended by Senate Nov. 19, 1993). As originally introduced,
however, S. 1607 did not contain a three strikes provision. See S. 1607, 103d
Cong. (as introduced Nov. 1, 1993). The Senate subsequently amended the bill to
include such a provision. See 139 Cong. Rec. S15,258-62, S15,269 (daily ed.
Nov. 8, 1993) (statement of Sen. Lott) (proposing amendment); 139 Cong. Rec.
D1265 (daily ed. Nov. 8, 1993) (adopting amendment). S. 1607's version of the
three strikes provision, however, provided no exception for “nonqualifying
felonies.” See H.R. 3355, 103d Cong. § 511 (as amended by Senate Nov. 19,
1993).
       After the Senate amended H.R. 3355, it went back to the House, where it
was again amended, this time by inserting the text of H.R. 4092. See H.R. 3355,
103d Cong. (as amended by House Apr. 21, 1994). H.R. 4092, as originally
introduced, contained a three strikes provision which included an exception for
“nonqualifying felonies.” See H.R. 4092, 103d Cong. § 501 (as introduced Mar.
18, 1994). In its original form, H.R. 4092 required a defendant to prove by clear
and convincing evidence that “no firearm or other dangerous weapon was
involved in the offense.” Id. (emphasis added). Prior to inserting the language of
H.R. 4092 into H.R. 3355, however, the House amended the “nonqualifying
felonies” section, adopting the current language. See 140 Cong. Rec. H2415,
H2432 (daily ed. Apr. 19, 1994) (statement of Rep. Volkmer) (proposing
amendment). The House also amended H.R. 4092 by adding two more offenses to
the list of “serious violent felonies.” See id. The Conference Committee
thereafter retained in H.R. 3355 the amended three strikes provision of H.R. 4092,
and both the House and Senate concurred. See H.R. 3355, 103d Cong. § 70001
(enrolled version Aug. 25, 1994).
       The original version of the “nonqualifying felonies” provision, requiring a
defendant to prove that no firearm was “involved” in the offense, is broader than
the adopted version, requiring a defendant to prove that his actions did not

                                        -13-
concludes the word “used” in § 3559(c)(3)(A)(i) means “active employment,” as

that term is defined in Bailey. See Bailey, 116 S. Ct. at 508-09. Therefore, to

come within the purview of the “nonqualifying felony” exception, a defendant

must establish by clear and convincing evidence that, inter alia, no firearm was

actively employed in the offense.

      In this case, the underlying offense was conspiracy to commit robbery.

Gottlieb never completed the substantive offense of robbery. When the




constitute the “use” or “threat of use” of a firearm. Under the adopted version,
therefore, it appears more defendants would be able to take advantage of the
“nonqualifying felonies” exception and consequently avoid application of the
Three Strikes statute.
       According to those Representatives who spoke in favor of the amendment,
however, the amendment was apparently intended to strengthen the statute.
Representative Volkmer, who proposed the amendment, stated that the
amendment would “add[] language to require proof that there was no threat of use
of [a] firearm or other dangerous weapon during a robbery, or an attempt,
conspiracy, or solicitation to commit robbery.” 140 Cong. Rec. H2415, H2432
(daily ed. Apr. 19, 1994). Representative McCollum offered his support for the
amendment and stated that he and Volkmer had “discussed several weeks ago how
the legislation has some weaknesses in the definition.” Id. Representative Hoyer
stated that the amendment would “strengthen[] the bill by increasing the number
of repeat offenders subject to the three strikes” and would “close loopholes which
may have been left open.” Id. No one spoke against the proposed amendment.
See id. at H2433.
       It is difficult to reconcile the stated views with the apparent effect of the
amendment. While the amendment to the “nonqualifying felonies” exception
seemingly reduces the number of defendants ultimately subject to the Three
Strikes statute, the Representatives who spoke in favor of the amendment
heralded it as strengthening the statute. Thus, Congress’ intended meaning of the
words “use” and “threat of use” in § 3559(c)(3)(A)(i) is not clarified by the
legislative history of the Three Strikes statute.

                                        -14-
underlying crime is an inchoate rather than a substantive offense, application of

the Bailey definition of “use” is more difficult. At least one court has recognized

this conundrum in the § 924(c) context. See United States v. Phan, 121 F.3d 149,

152-53 (4th Cir. 1997) (upholding defendant’s § 924(c) conviction for “using”

firearm during and in relation to conspiracy, where substantive crime was never

committed), cert. denied, 1998 WL 69407 (Feb. 23, 1998); cf. United States v.

Lampley, 127 F.3d 1231, 1240-41 (10th Cir. 1997) (noting that in determining

under § 924(c) whether defendants “carried” firearms “during and in relation to”

the conspiracy, court is “faced with a difficult task” when “the conspiracy never

resulted in an underlying substantive crime”), cert. denied, 1998 WL 19401 (Feb.

23, 1998), and 1998 WL 38041 (Feb. 23, 1998), and 1998 WL 54259 (Mar. 9,

1998).

         In Phan, the defendant was found guilty of conspiracy to commit robbery in

violation of 18 U.S.C. § 1951 and of using a firearm during and in relation to a

crime of violence in violation of § 924(c). See Phan, 121 F.3d at 151-52. Like

Gottlieb, the defendant in Phan was arrested before committing the substantive

crime of robbery. See id. at 151. In considering whether the defendant’s § 924(c)

conviction should be upheld, the court first noted that conspiracy to commit

robbery may serve as the predicate offense for § 924(c) liability. See id. at 152-

53. The court then stated that application of Bailey is “straightforward” in “cases


                                         -15-
where conspiracy to commit a violent crime is the predicate offense, and the

underlying [substantive] crime has been committed.” Id. at 153. The court

recognized, however, that in cases where the substantive crime has not been

committed, “Bailey offers only imperfect guidance” on the question of whether a

firearm was “used” during and in relation to the predicate offense of conspiracy.

See id.

      In discussing the parameters of “use” in the context of a conspiracy, the

Phan court first noted that “[i]f [the defendant] had merely possessed the

handguns at the time of the conspiracy, even if he intended to use them during the

robbery, we would be forced to vacate his conviction under Bailey.” Id. The

court next stated that to affirm the defendant’s conviction, it need not find that

the defendant “actively employed the handguns in one of the ways listed in

Bailey,” for Bailey recognized that “‘use’ takes on different meanings depending

on context.” Id. The court then concluded that “[i]n the context of the inchoate

crime of conspiracy to commit robbery, we find that the giving of firearms to a

fellow conspirator constitutes active employment.” 8 Id.


      8
       Prior to the planned robbery, the defendant in Phan discussed with his
coconspirators the need to carry firearms during the robbery and provided one of
the coconspirators with two loaded handguns. See United States v. Phan, 121
F.3d 149, 151-52 (4th Cir. 1997), cert. denied, 1998 WL 69407 (Feb. 23, 1998).
On the day of the intended robbery, the coconspirators placed the firearms under
the seat of their car and drove to the robbery site. See id. at 152. They were
arrested before the robbery took place. See id. at 151. The defendant did not

                                         -16-
      Although Phan involved firearms “use” in the context of a § 924(c)

conviction, the analysis is applicable in determining whether a firearm was “used”

for purposes of § 3559(c)(3)(A)(i) of the Three Strikes statute. As discussed

above, it is undisputed that Gottlieb was arrested before he even touched the

firearm in question. The firearm was at all times under the sole control of the

federal agents. At best, the evidence shows Gottlieb attempted to acquire and

intended to possess a firearm during the planned but frustrated robbery. As the

court recognized in Phan, this is insufficient to constitute “use” under Bailey.

See id. Consequently, Gottlieb has met his burden of establishing that he did not

“use” a firearm in connection with the 1987 offense.

      b.        “Threat of Use” of a Firearm

      The Three Strikes statute also does not define “threat of use” for purposes

of determining whether an offense involved the “threat of use” of a firearm under

§ 3559(c)(3)(A)(i). Furthermore, no court has expressly defined “threat of use” in

this context.

      Gottlieb argues the word “threat” generally, and especially in criminal

statutes, “means a communicated intent to engage in a harmful act against

someone or something.” Gottlieb argues that under this definition of “threat,” the

1987 offense did not involve the “threat of use” of a firearm, particularly in light



accompany the coconspirators to the robbery site. See id.

                                         -17-
of the absence of evidence that the intended victims even knew of the existence of

the scheme.

      Gottlieb’s proposed definition of “threat” is consistent with the one federal

court case discussing the term in the context of the Three Strikes statute. In

United States v. Washington, 109 F.3d 335 (7th Cir.), cert. denied, 118 S. Ct. 134

(1997), the defendant, who was sentenced to life imprisonment under the Three

Strikes statute, argued on appeal that his three bank robbery convictions

constituted “nonqualifying felonies” under § 3559(c)(3)(A). See id. at 337. In

each of the bank robberies, the defendant utilized a written note which stated,

among other things, “‘I have a gun.’” Id. The court summarily concluded that

“[s]uch a statement implies a ‘threat of use of a firearm’ and prevents [the

defendant] from satisfying subsection (i) [of § 3559(c)(3)(A)].” Id. Although the

Washington court did not expressly define “threat of use,” its holding indicates

the term includes a communicated expression to a victim that the defendant would

use a firearm.

      Relying on Washington, the government asserts Gottlieb’s actions in this

case constituted a “threat of use” of a firearm. 9 Unlike the defendant in


      9
       The government asserts that Gottlieb’s request of the firearm and his
reaching for the firearm “is the functional equivalent of [the Washington]
defendant’s three notes to bank tellers stating, ‘I have a gun.’” The government,
however, fails to develop this mere assertion by explaining precisely how
Gottlieb’s actions are the “functional equivalent” of communicating a threat to a

                                         -18-
Washington, however, Gottlieb did not communicate to any intended victim a

threat to use a firearm. The presence of undercover agents assured there was not

even a reasonable possibility that Gottlieb would come into contact with his

intended victims. The holding of Washington is therefore inapposite; its focus on

a “threat” as a communication, however, is instructive.

      Gottlieb’s argument that “threat of use” of a firearm means a communicated

intent to use a firearm is also consistent with the plain meaning of the word

“threat.” See Webster’s Third New International Dictionary 2382 (1993)

(defining “threat” as an “expression of an intention to inflict loss or harm on

another by illegal means and esp[ecially] by means involving coercion or duress

of the person threatened”); Black’s Law Dictionary 1480 (6th ed. 1990) (defining

“threat” as “[a] communicated intent to inflict physical or other harm,” “[a]

declaration of an intention to injure,” “[a] declaration of intention or

determination to inflict punishment, loss, or pain,” and “an avowed present

determination or intent to injure”). Interpreted broadly, however, the word

“threat” can also mean a “risk” that something will occur. See Webster’s, supra,

at 2382 (defining “threat” as “an indication of something impending and usu[ally]

undesirable or unpleasant,” as in “the air held a [threat] of rain”).




victim.

                                          -19-
      The government apparently advocates this broader definition of “threat.”

Specifically, the government argues that “Gottlieb’s actions of requesting a

firearm . . ., dressing prepared to use a firearm (‘wearing a bulletproof vest . . .’),

and . . . reaching for the firearm prevent Gottlieb from meeting the no-threat

requirement.” 10

      Gottlieb recognizes that “threat of use” may be interpreted to mean “risk of

use” but argues that if this broad definition were adopted, “virtually every robbery

would be a qualifying felony because every robbery can be said to involve some

inherent risk of use of a firearm.” There is a difference, however, between a

general risk inherent in all violent crimes that a firearm may be used and a

demonstrated risk that a firearm will be used in a particular offense. Therefore, if

“threat of use” were interpreted broadly to include “risk of use,” the

“nonqualifying felonies” exception would still have meaning. Cf. Bailey, 116 S.

Ct. at 506 (noting that in determining meaning of statutory language, court should

act “with the assumption that Congress intended each of [the statutory] terms to

have meaning”).

      This court need not decide, however, whether “threat of use” of a firearm

as used in § 3559(c)(3)(A)(i) means a communicated intent to use a firearm,


      10
         The government makes no attempt to expressly define “threat of use.”
Rather, the government summarily asserts that Gottlieb’s actions constituted such
a threat.

                                          -20-
whether it means a risk that a firearm would be used in the offense, or whether it

incorporates both meanings. Under any of these formulations, Gottlieb’s actions

did not constitute a “threat.” It is undisputed that Gottlieb was arrested before he

even touched the firearm and before he ever came into contact with his intended

victims. Gottlieb therefore never had the opportunity to threaten anyone with the

firearm. Further, as Gottlieb notes, the firearm was at all times under the sole

control of the federal agents and at a place distant from the site of the intended

substantive crime. Thus, there was never any actual risk that the firearm would

be used in the offense. Under the discrete facts of this case, therefore, the

defendant has met his burden of establishing by clear and convincing evidence

that no “threat of use” of a firearm was involved in the 1987 offense.

      3.     Summary

      The government concedes that the 1987 offense did not result in death or

serious bodily injury, therefore satisfying the second prong of § 3559(c)(3)(A).

This court concludes that Gottlieb has established by clear and convincing

evidence that the 1987 offense did not involve the “use” or “threat of use” of a

firearm, therefore satisfying the first prong of § 3559(c)(3)(A). Gottlieb’s 1987




                                         -21-
conviction thus constitutes a “nonqualifying felony” under § 3559(c)(3)(A) and

cannot be used as a “strike” for purposes of satisfying § 3559(c)(1). 11

                                   B. Restitution

      Gottlieb next argues the district court erred in failing to make his

restitution obligation joint and several with that of a codefendant who was also

ordered to make full restitution. The government agrees that Gottlieb’s obligation

should be joint and several and argues that the district court’s “oral orders . . .

clearly evince an intent that restitution be joint and several among Gottlieb and

his codefendants.” Based on the district court’s statements at the sentencing

hearing, it appears the court intended Gottlieb’s restitution obligation to be joint




      11
        Gottlieb also argues that requiring him to prove by clear and convincing
evidence that the 1987 offense did not involve the use or threat of use of a
firearm violated his right to due process. Because this court concludes that
Gottlieb has satisfied this heightened standard, we need not decide whether
imposition of the standard in the context of the Three Strikes statute violates his
due process rights.

                                         -22-
and several. 12 As Gottlieb notes, however, the box labeled “joint and several” on

the district court’s judgment is not checked.

      Restitution in this case was ordered pursuant to the Victim and Witness

Protection Act (VWPA), 18 U.S.C. § 3663. “A sentencing court may not order

restitution under the VWPA in an amount greater than the total loss caused by a

defendant’s conduct.” United States v. Harris, 7 F.3d 1537, 1539 (10th Cir.

1993). In cases such as this when there are multiple defendants, “the VWPA does

not indicate how a court should apportion a restitution award.” Id. at 1540. As

this court has held, however, a sentencing court may not require each codefendant

to pay restitution for the entire loss suffered by the victim, because “victims

theoretically could [thereby] receive more in restitution than they had lost, a

result at odds with both the VWPA’s limited purpose and its language.” United



      12
         According to the judgment entered by the court, the total loss to the bank
was $30,757. Of that amount, $2225 was recovered, leaving a balance of
$28,532. At sentencing, the district court ordered Gottlieb to make restitution in
the amount of $28,532. After the district court made its finding regarding
restitution, Gottlieb’s counsel objected, stating: “[T]here are two co-defendants
and I think restitution, the Court indicated, would be solely the responsibility of
Mr. Gottlieb.” The court responded: “It will be solely their responsibility, too.
All of them have full responsibility.” Gottlieb’s counsel then indicated his
objection was resolved.
       According to the judgment entered for Mr. Hoffman, Gottlieb’s
codefendant, the court ordered Mr. Hoffman to make restitution in the amount of
$29,757. The judgment in Mr. Hoffman’s case states that the total loss to the
bank was $30,757, with no offsetting loss recovered. It is unclear from the record
why the court ordered Mr. Hoffman to pay more than Gottlieb.

                                         -23-
States v. Arutunoff, 1 F.3d 1112, 1121 (10th Cir. 1993) (vacating restitution order

after concluding district court exceeded its statutory authority because total

amount of restitution orders imposed on codefendants exceeded total loss caused

by conspiracy).

       If, as Gottlieb claims, the district court ordered Gottlieb and his

codefendant to each pay the full amount of the loss suffered by the bank, the court

exceeded its statutory authority. See id. On the other hand, if the court intended

the restitution obligations of Gottlieb and his codefendant to be joint and several,

the court acted within its authority. See Harris, 7 F.3d at 1540. Because it is

unclear from the record what the district court intended, this court vacates

Gottlieb’s restitution order and remands to the district court for clarification.

                                  III. CONCLUSION

       For the reasons discussed above, this court VACATES Gottlieb’s sentence

and restitution order and REMANDS to the district court for resentencing and for

clarification of the restitution order. 13



        Approximately three-and-one-half months after oral argument in this case,
       13

Gottlieb filed a Motion for Leave to File Supplemental Opening Brief. According
to the Motion, Gottlieb had recently become aware of and notified his counsel of
a Second Circuit case decided in 1997, United States v. Collado, 106 F.3d 1097
(2d Cir. 1997), which Gottlieb asserts held that “under 21 U.S.C. § 851(a), an
enhanced sentence cannot be imposed unless the predicate offense forming the
basis for the enhanced sentence was prosecuted by indictment or waiver thereof.”
The Three Strikes statute incorporates the indictment requirement of § 851(a).
See 18 U.S.C. § 3559(c)(4).

                                             -24-
       According to the Motion, one of the prior offenses the government relied
on in enhancing Gottlieb’s sentence “was prosecuted by information rather than
by indictment or waiver thereof.” Gottlieb therefore argues that if the Second
Circuit’s interpretation of § 851(a) is correct, he should not have been sentenced
under the Three Strikes statute. Gottlieb further notes, however, that this court
has already rejected the Second Circuit’s interpretation of § 851(a)’s indictment
requirement. See United States v. Adams, 914 F.2d 1404, 1407 (10th Cir. 1990).
Gottlieb thus states he is raising the issue here “simply to preserve his right to
petition the Supreme Court to consider the issue, should a petition for certiorari
be necessary.”
       This court grants Gottlieb’s motion to file the supplemental brief. In light
of our conclusion that Gottlieb should not have been sentenced under the Three
Strikes statute because his 1987 offense constitutes a “nonqualifying felony,” this
court need not and does not address Gottlieb’s alternative argument that the
statute should not apply because one of his prior “strikes” was prosecuted by
information rather than by indictment or waiver thereof.

                                        -25-
