                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-7-1997

United States v. Casiano
Precedential or Non-Precedential:

Docket 96-1256,96-1380




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Recommended Citation
"United States v. Casiano" (1997). 1997 Decisions. Paper 97.
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Filed May 7, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-1256

UNITED STATES OF AMERICA

v.

JOSE CASIANO, a/k/a JOSE RIVERA

Jose Casiano,

     Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 95-cr-00408-1)

NO. 96-1380

UNITED STATES OF AMERICA

v.

ALFREDO DeJESUS,

     Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 95-cr-00408-2)



Argued November 4, 1996

Before: SLOVITER, Chief Judge, McKEE, and
ROSENN, Circuit Judges

(Filed May 7, 1997)

     Barnaby C. Wittels (Argued)
     Stephen Robert LaCheen and
      Associates
     Philadelphia, PA 19102

     Attorney for Appellant,
     Jose Casiano

     James A. Lammendola (Argued)
     Lammendola and Lammendola
     Philadelphia, PA 19147

     Attorney for Appellant,
     Alfredo DeJesus

     Michael R. Stiles
      United States Attorney
     Walter S. Batty, Jr.
      Assistant United States Attorney
      Chief of Appeals
     Wendy A. Kelly (Argued)
      Assistant United States Attorney
     Philadelphia, PA 19106

OPINION OF THE COURT

SLOVITER, Chief Judge.

In this consolidated action, appellants Jose Casiano and
Alfredo DeJesus, each of whom pled guilty to both
carjacking and kidnapping, appeal from the application of
the twenty-year enhancement mandated by 18 U.S.C.
§ 924(c)(1) for a second or subsequent conviction for using
a firearm in relation to a crime of violence. They contend

                               2

that despite the literal language of the statute, the
enhancement is not applicable if the second conviction
arises from the same criminal episode and involves the
same victim as the first conviction. Casiano appeals his
firearms conviction, arguing that he is not liable under the
standard enunciated in Bailey v. United States, 116 S.Ct.
501 (1995), for the "use and carrying" of a firearm under 18
U.S.C. § 924(c)(1). Casiano and DeJesus also contest the
district court's rulings on their respective motions for
downward departures. We have jurisdiction of these
appeals, which we had consolidated under 28 U.S.C.
§ 1291.

I.

FACTS AND PROCEDURAL HISTORY

On July 6, 1995, after a binge of snorting heroin and
angel dust lasting approximately six hours, Jose Casiano,
Alfredo DeJesus, and Jose Cantero, a fifteen-year old
juvenile, left the house of Casiano's cousin in Philadelphia
and began walking back to their homes in Camden. Both
Cantero and DeJesus were carrying .380 automatic pistols.
One of the three suggested that they steal a car. At
approximately 10:00 p.m., they saw Father Marc Shinn, a
Russian Orthodox priest, getting out of his Dodge van.
DeJesus approached Father Shinn, hit him in the head
with the butt of the gun and forced him into the back of the
van. Father Shinn was then forced at gunpoint to lie in the
back of the van, where Cantero sat on his back, covered his
head with a blanket, and held a gun to his head. With
DeJesus driving, they drove the van back to Camden.

Father Shinn told the men he was a priest; one of them
answered, "We don't fucking care if you are a fucking
priest." During the forty-five minutes in which Father Shinn
was held captive in the back of the van, Cantero straddled
him, simulating anal sex, and repeatedly pistol-whipped
and threatened him. Father Shinn lost consciousness
several times. His captors stated that because Father Shinn
had seen DeJesus's face, he would have to be killed, and
they openly discussed how and where they would kill him.

                               3

They stopped the van when they reached a remote
location in Camden. Casiano and Cantero forced Father
Shinn out of the van without his shoes or glasses, and
Cantero then forced him to walk at gunpoint through a
ditch of water approximately one foot deep and through a
grassy field, pushed him to the ground and fired twice at
his back. One shot narrowly missed Father Shinn's head,
and the other shot hit him in the back. Father Shinn
feigned death. Cantero returned to the van, shouting"I
shot, I shot," and the three assailants drove away, leaving
Father Shinn lying on the ground.

The bullet actually went through Father Shinn's
shoulder, he was not critically injured, and he managed to
get help. A short time later, one of the paramedics who
assisted Father Shinn and his partner recognized the van
from the description given by Father Shinn. He called the
police, and the three perpetrators were apprehended while
sitting in the van outside a bar. The police also found four
firearms in the van -- the two .380 pistols, one sawed-off
shotgun, and one .38 revolver, all loaded with live
ammunition.

DeJesus and Casiano were indicted on August 3, 1995 by
a federal grand jury sitting in the Eastern District of
Pennsylvania. Cantero was indicted separately. This court
upheld the district court's order granting the government's
motion to try him as an adult. See United States v. J.C., No.
95-1809 (3d Cir. May 24, 1996).

Both DeJesus and Casiano were charged with one count
of conspiracy to commit carjacking and kidnapping in
violation of 18 U.S.C. § 371, one count of carjacking in
violation of 18 U.S.C. § 2119, one count of kidnapping in
violation of 18 U.S.C. § 1201(c)(1), and two counts of using
a firearm in relation to a crime of violence in violation of 18
U.S.C. § 924(c)(1). Casiano entered a guilty plea, pursuant
to a plea agreement, to all counts on October 23, 1995.
DeJesus entered an open guilty plea to all counts on
December 22, 1995.

The district court sentenced Casiano to 188 months
imprisonment on the conspiracy, carjacking and
kidnapping counts to run concurrently. In addition, the

                                4

court sentenced him to an additional 60 months for the use
of a firearm in relation to the carjacking pursuant to 18
U.S.C. § 924(c)(1), to run consecutively to the substantive
counts. The court then imposed an additional sentence of
240 months imprisonment for the use of a firearm in
relation to the kidnapping and, pursuant to the same
statute, imposed that sentence to run consecutively. The
total imprisonment for Casiano thus was 488 months.

DeJesus was sentenced to 70 months imprisonment on
the conspiracy, carjacking and kidnapping counts to run
concurrently to each other, and an additional 60 months
for the first violation of 18 U.S.C. § 924(c)(1), to run
consecutively, and 240 months for the second violation of
18 U.S.C. § 924(c)(1), to run consecutively.

The principal challenge raised by both Casiano and
DeJesus on appeal is to the application of § 924(c)(1) to the
second offense, which added an additional twenty years
imprisonment to their sentences.

II.

CHALLENGES TO SENTENCES UNDER § 924(c)(1)

A.

The relevant statute, 18 U.S.C. § 924(c)(1), provides, in
pertinent part:

       Whoever, 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
      . . . be sentenced to imprisonment for five years . . . .
      In the case of his second or subsequent conviction under
      this subsection, such person shall be sentenced to
      imprisonment for twenty years . . . . Notwithstanding
      any other provision of law, the court shall not place on
      probation or suspend the sentence of any person
      convicted of a violation of this subsection, nor shall the
      term of imprisonment imposed under this subsection
      run concurrently with any other term of imprisonment
                               5

     including that imposed for the crime of violence . .. in
     which the firearm was used or carried.

18 U.S.C. § 924(c)(1) (Supp. 1996) (emphasis added).

Appellants Casiano and DeJesus argue that because the
criminal course of conduct from the carjacking (the first
predicate offense) to the kidnapping (the second predicate
offense) was continuous and involved only one victim, the
district court erred as a matter of law in applying § 924(c)(1)
to use of a handgun in connection with the kidnapping as
"a second or subsequent conviction." However, they point to
nothing in the language of the statute to support their
statutory construction and our searching inquiry has
uncovered no support for their position. The statute speaks
in terms of "conviction," not criminal episode. This textual
approach to § 924(c)(1) is compelled by the Supreme Court's
interpretation of that statutory provision in Deal v. United
States, 508 U.S. 129, 113 S.Ct. 1993 (1993).

Deal, who had committed six armed robberies at different
banks on different dates within a four-month period, was
charged in one indictment with, inter alia, six bank
robberies and six counts of violation of 18 U.S.C.
§ 924(c)(1). Upon Deal's conviction on all charges, he was
sentenced to five years imprisonment on the first § 924(c)(1)
count and to twenty years on each of the five other
§ 924(c)(1) counts, each term to run consecutively. The
issue before the Supreme Court was "whether [Deal's]
second through sixth convictions under § 924(c)(1) in [a]
single proceeding arose `[i]n the case of his second or
subsequent conviction' within the meaning of § 924(c)(1)."
Id. at 131.

The Court rejected Deal's argument that because
"conviction" could mean either the finding of guilt or the
entry of a final judgment of guilt, § 924(c)(1) should be
limited to the latter under the rule of lenity. Under Deal's
construction, the "second or subsequent conviction" as
used in § 924(c)(1) would have had to occur in a separate
adjudication. Justice Scalia parsed the text of the statute
and concluded that the only coherent reading of the
language was that the word "conviction" used there referred
to a finding of guilt, and not to a final judgment, id. at 132,

                               6

and that because "findings of guilt on several counts are
necessarily arrived at successively in time," id. at 133 n.1,
a finding of guilt on each count after the first was "second
or subsequent," id..
The dissent in Deal argued that "subsequent conviction"
as used in § 924(c)(1) "clearly is intended to refer to a
conviction for an offense committed after an earlier
conviction has become final; it is, in short, a recidivist
provision." Id. at 141-42 (Stevens, J., dissenting). Inasmuch
as that argument was expressly rejected by the Deal
majority, Casiano and DeJesus do not repeat it here.
Instead, they contend that § 924(c)(1) was never intended to
punish subsequent convictions arising out of a single
criminal enterprise involving the same victim. They attempt
to distinguish Deal because it involved six separate and
distinct robberies, which were committed over a period of
four months at six different Houston area banks and
necessarily involved numerous victims. They note that Deal
and the opinions of the courts of appeals subsequent to
Deal are silent as to whether multiple § 924(c)(1) offenses
under these facts can constitute "second or subsequent"
convictions. They argue that therefore we should conclude
that the twenty-year enhancement under § 924(c)(1) does
not reach them.

This court has not yet been faced with this precise
factual scenario. Nonetheless, the language and reasoning
of Deal ineluctably require rejection of this argument. In
order to adopt defendants' argument, we would have to
limit the statutory language "second or subsequent
conviction" to exclude a conviction that arises out of the
same criminal episode involving the same victim.
Defendants would have us insert words in the statute
which simply are not there. In doing so, they would require
us to ignore that Congress specifically commanded that the
enhancement would apply to "any" crime of violence
without regard to temporal considerations.

Just as the Supreme Court in Deal declined to
differentiate between convictions embodied in separate
judgments and those embodied in separate charges in the
same indictment, so also we cannot distinguish between
criminal acts that occur over a period of time and/or affect

                               7

various victims and those that result from the same course
of criminal activity and involve one victim. The Deal Court
was unequivocal in holding that under § 924(c)(1)
"conviction" means "the finding of guilt by a judge or jury
that necessarily precedes the entry of a final judgment of
conviction," and that more than one "conviction" can occur
in a single proceeding. Id. at 131-32. The Court stated: "The
present statute . . . does not use the term `offense,' so it
cannot possibly be said that it requires a criminal act after
the first conviction. What it requires is a conviction after the
first conviction. There is utterly no ambiguity in that . . . ."
Id. at 135 (emphasis added).
Those circuits that have had occasion to interpret
§ 924(c)(1) after Deal have uniformly required the imposition
of twenty-year consecutive sentences for second and
subsequent convictions on multiple counts of § 924(c)(1)
notwithstanding a factual nexus between the predicate
offenses. In United States v. Floyd, 81 F.3d 1517 (10th
Cir.), cert. denied, 117 S.Ct. 144 (1996), a case closely
parallel to this one, defendant Floyd was sentenced to two
§ 924(c)(1) convictions corresponding to the carjacking of
the truck of a school principal and the kidnapping of his
(Floyd's) stepson from that school. Floyd challenged the
consecutive § 924(c)(1) sentences as duplicative on the
ground that the carjacking and kidnapping were "a single,
continuous event." Id. at 1526-27. The court held that the
consecutive sentences were not duplicative because each
conviction required proof of an additional fact not required
by the other under the test articulated by the Supreme
Court in Blockburger v. United States, 284 U.S. 299, 304
(1932). See id.

Similarly, in United States v. Andrews, 75 F.3d 552, 558
(9th Cir.), cert. denied, 116 S.Ct. 1890 (1996), the court
rejected a challenge to a § 924(c)(1) enhancement for a
second conviction in a case where the underlying offenses
of murder and manslaughter occurred "virtually
simultaneously," as part of the same criminal episode. And
in United States v. Camps, 32 F.3d 102 (4th Cir. 1994),
cert. denied, 115 S.Ct. 1118 (1995), the court, faced with a
defendant intricately involved in a violent drug conspiracy,
upheld separate § 924(c)(1) convictions with consecutive

                               8

terms of five, twenty, and twenty years arising out of a
series of acts committed on separate days, all of which were
part of the same scheme to preserve this drug operation
from a rival gang.

Casiano and DeJesus do not dispute that under the
Blockburger test carjacking and kidnapping are distinct
predicate offenses but they attempt to distinguish Floyd
and Andrews on the ground that those cases involved
multiple victims. They point to no language in § 924(c)(1) or
in Deal's interpretation of § 924(c)(1) that would support
such a distinction, nor do they offer a principled reason for
us to treat that difference as significant.

It is unquestionable that crimes occurring as part of the
same underlying occurrence may constitute separate
predicate offenses if properly charged as separate crimes.
See United States v. Fontanilla, 842 F.2d 1257, 1258-59
(9th Cir. 1988). It follows that each may be a separate
predicate for a § 924(c)(1) conviction, as the court held in
Andrews, 75 F.3d at 558.

Indeed, in United States v. Torres, 862 F.2d 1025 (3d Cir.
1988), this court sustained convictions on two § 924(c)(1)
counts that arose out of the same episode on the same day.
Torres sought to protect his confederates who were being
arrested for distribution of cocaine on the street by
brandishing a firearm at the arresting officer. He was
convicted of the predicate offenses of conspiracy to
distribute cocaine and assaulting a federal officer, as well
as two § 924(c)(1) offenses, i.e., use of afirearm during a
drug trafficking crime (count 4) and use of afirearm in
connection with an assault on a federal officer (count 5). We
held that "the section 924(c)(1) convictions were proper
under both counts 4 and 5." Id. at 1032. This alone stands
as circuit precedent compelling rejection of the argument of
Casiano and DeJesus, as not only did the two § 924(c)(1)
convictions in Torres arise out of the same criminal episode,
they arose out of the same act, unlike the facts in this case.

It is true, as defendants note, that in Torres the
government stipulated that only one sentence could be
imposed in that case where there were two violations of
§ 924(c)(1). See id. However, the Torres decision came down

                               9

before Deal and we accepted the government's concession
without comment. It is therefore not controlling here, and
to the extent it may be interpreted as contrary to Deal, it is
superseded by Deal. See United States v. Luskin, 926 F.2d
372, 378 (4th Cir. 1991).

Although there may be some force in defendants'
argument that the enhanced penalty under § 924(c)(1)
serves little purpose in a case where the predicate acts
occur simultaneously and where there is not time for
defendants to reflect and understand the consequences of
a "second" conviction, we agree with the Ninth and Tenth
Circuits that the Supreme Court's unambiguous definition
of "second or subsequent conviction" in Deal compels our
holding. That Court specifically rejected a similar argument,
stating:

      We choose to follow the language of the statute,
     which gives no indication that punishment of those
     who fail to learn the "lesson" of prior conviction or of
     prior punishment is the sole purpose of § 924(c)(1), to
     the exclusion of other penal goals such as taking
     repeat offenders off the streets for especially long
     periods, or simply visiting society's retribution upon
     repeat offenders more severely.

Deal, 508 U.S. at 136. The fact that "section 924 sentences
can produce anomalous results and will provide no
additional deterrence . . . cannot defeat the plain language
of the statute." Andrews, 75 F.3d at 558.

Being bound by the Supreme Court's interpretation of
§ 924(c)(1) in Deal, we will affirm the district court's
§ 924(c)(1) enhancements. It is for Congress to ameliorate
the result of application of the statute according to its
terms, if it deems it too harsh.
