                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-2002

USA v. Couch
Precedential or Non-Precedential: Precedential

Docket No. 01-1826




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PRECEDENTIAL

       Filed May 20, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1826

UNITED STATES OF AMERICA,

v.

BRYAN COUCH,
       Appellant

Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 00-cr-459-01

District Judge: Honorable Harvey Bartle, III

Argued: January 18, 2002

Before: SCIRICA, ROSENN, Circuit Judges, and
KANE,* District Judge.

(Filed: May 20, 2002)

       MICHAEL L. LEVY, ESQUIRE
       ROBERT A. ZAUZMER, ESQUIRE
       ROBERT GOLDMAN, ESQUIRE
        (ARGUED)
       Office of United States Attorney
       615 Chestnut Street
       Philadelphia, PA 19106
        Counsel for Appellee
_________________________________________________________________

* The Honorable Yvette Kane, United States District Judge for the Middle
District of Pennsylvania, Sitting by Designation.




       DAVID L. McCOLGIN, ESQUIRE
        (ARGUED)
       MAUREEN KEARNEY ROWLEY,
        ESQUIRE
       Defender Association of Philadelphia
       Federal Court Division
       Curtis Center, Independence Square
        West
       Suite 540 West
       Philadelphia, PA 19106
        Counsel for Appellant

OPINION OF THE COURT

KANE, District Judge.
Bryan Couch appeals from the District Court’s imposition
of enhanced sentences under 18 U.S.C. S 924(c)(1)(C).
Couch pled guilty to three charges of interference with
commerce by robbery in violation of 18 U.S.C. S 1951 (the
Hobbs Act) and to three counts of discharging a firearm
during a crime of violence in violation of S 924(c)(1). The
District Court sentenced Couch to sixty-three months on
the robbery counts, to ten years on one firearm conviction
and to twenty-five years on each of the others, to be served
consecutively.

Couch raises one issue on appeal. He argues that
because he entered one guilty plea to six counts of the
indictment at the same time, no one conviction is a"second
or subsequent" conviction subject to the enhanced
sentencing provision of 18 U.S.C. S 924(c)(1)(C). Thus,
Couch argues, the District Court erred in imposing
enhanced sentences of twenty-five years each for two of the
three firearms convictions.

We have jurisdiction pursuant to 28 U.S.C. S 1291 and
18 U.S.C. S 3742(a). Couch’s challenge is reviewed for plain
error because he failed to raise this objection below. See
Fed. R. Crim. P. 52(b); United States v. Knight , 266 F.3d
203, 206 (3d Cir. 2001) ("[W]here a defendant has failed to
object to a purported error before the sentencing court, our

                                2


review on appeal is only to ensure that plain error was not
committed."). We will affirm.

I. Facts

Couch admitted to the armed robbery of three different
supermarkets in the Eastern District of Pennsylvania on
December 20, 1999, April 13, 2000 and June 9, 2000.
During the first two robberies, Couch fired his shotgun
inside the stores but no one was injured. During his
getaway from the third robbery Couch fired his shotgun at
a police officer, striking him in the forehead and leg.

On December 4, 2000, Couch pled guilty to three charges
of interference with commerce by robbery in violation of the
Hobbs Act and to three counts of discharging a firearm
during a crime of violence pursuant to S 924(c)(1). The
manner in which the District Court invited and accepted
his plea form the basis for Couch’s argument here. During
the colloquy, the District Court asked Couch how he pled
"to criminal indictment number 00-459-1, consisting of six
counts charging [him] with interference with commerce by
robbery, [and] use, carrying, and discharge of a gun during
a crime of violence." Couch responded, "[g]uilty," and the
District Court concluded by saying, "the Court accepts the
plea."

The court below sentenced Couch to sixty-three months
on the Hobbs Act counts, to ten years for one of the firearm
counts pursuant to S 924(c)(1)(A)(iii) and to twenty-five
years for each of the other two firearm counts pursuant to
S 924(c)(1)(C). These sentences were imposed consecutively.
In total, the District Court sentenced Couch to 783 months
in prison, five years of supervised release, a $600
mandatory special assessment, and restitution of
$39,508.94.

II. Discussion

The parties agree that 18 U.S.C. S 924(c)(1) governs
Couch’s sentence for the three counts of discharging a
firearm during a crime of violence. That statute reads, in
pertinent part:

                                  3


       (A) [A]ny person who,   during and in relation to any
       crime of violence . .   . 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 . . .

       (iii) if the firearm is discharged, be sentenced to a
       term of imprisonment of not less than 10 years.

       . . .

       (C) In the case of a second or subsequent conviction
       under this subsection, the person shall--

       (i) be sentenced to a term of imprisonment of not
       less than 25 years . . .

18 U.S.C. S 924(c)(1) (2000).

The Supreme Court applied the enhanced sentencing
provision set forth in S 924(c)(1)(C) in Deal v. United States,
508 U.S. 129 (1993). As in this case, Deal was charged in
one multi-count indictment for unrelated offenses occurring
on different dates. Deal was convicted by a jury of six
armed robberies he committed over a four month period in
1990. Deal, 508 U.S. at 130. Among the charges of which
Deal was convicted were six counts of carrying and using a
firearm during the robberies in violation of S 924(c)(1). Id. At
sentencing, Deal received the standard penalty for one
count pursuant to S 924(c)(1)(A)(iii) and the enhanced
penalty set forth in S 924(c)(1)(C)(i) for each of the other five.
Id.

On appeal, Deal argued that the statute is ambiguous
because the word "conviction" in S 924(c)(1)(C) could refer to
either the verdict of guilt or the entry of final judgment of
conviction. Deal asked the Court to construe the word
"conviction" in S 924(c)(1)(C) leniently so as to mean the
entry of final judgment, which includes both the
adjudication of guilt and sentence. Because only one entry
of final judgment, albeit with multiple counts, had been
entered in his case, Deal reasoned that there was no
"second or subsequent" conviction meriting the enhanced
sentence.

The United States Supreme Court rejected Deal’s
argument and the support for it articulated in the dissent.

                                4


The dissent in Deal opined that Congress intended
S 924(c)(1) to punish recidivists, not first-time offenders
with multiple counts. The dissent found "no ambiguity in
the phrase ‘subsequent conviction’ as used inS 924(c)," and
would have held that the phrase "second or subsequent
conviction" referred to a conviction for an offense committed
after a prior conviction under the statute had become final.
Deal, 508 U.S. at 141 (Stevens, J., dissenting).

The majority soundly rejected this argument, holding that
the word "conviction" in S 924(c)(1)(C), the second or
subsequent of which merits an enhanced sentence, refers
to the finding of guilt by a judge or jury. Deal , 508 U.S. at
132. Because the jury found Deal guilty of eachS 924(c)(1)
count, presumably one at a time, every count after the first
was subject to the enhanced penalty because it was a
second or subsequent finding of guilt. Id.

Our analysis begins, as it must, with the Supreme
Court’s definition of the word "conviction" as a finding of
guilt. Unlike Deal, before us is a plea of guilt rather than a
finding of guilt by a jury or judge. This difference need not
detain us long. Inasmuch as a plea of guilt is the moment
when the defendant declares himself guilty, for our
purposes here, it is equivalent to the same declaration
made by a judge or jury.

Couch does not dispute that under Deal he incurred
three S 924(c)(1) convictions at the moment he entered a
guilty plea. However, because the District Court did not
take the plea for each count separately, Couch argues that
there is no "second or subsequent conviction." Instead, the
District Court referred to the indictment number, described
its contents as, "six counts charging [him] with . . . use,
carrying, and discharge of a gun during a crime of
violence," and asked Couch how he pled. Couch said
"guilty" once in response, and the District Court accepted
his plea. As a result, Couch argues, none of his convictions
qualifies to enhance his sentence under S 924(c)(1) because
none followed any of the others in time, order or
succession. Should he prevail with this argument, Couch
should receive only the ten year penalty of S 924(c)(1)(A)(iii)
for each of the three counts, shaving 30 years from his
sentence.

                                5


This case falls within the very crevasse that the majority
in Deal was convinced its holding had sealed. The Supreme
Court presented the issue thusly:
       [Deal] also argues that the terms "second" and
       "subsequent" admit of at least two meanings--next in
       time and next in order or succession. That ambiguity is
       worth pursuing if "conviction" means "judgment," since
       a judgment entered once-in-time can (as here) include
       multiple counts. The point becomes irrelevant,
       however, when "conviction" means (as we hold) a
       finding of guilt.

Deal, 508 U.S. at 133 n.1. By way of support the Supreme
Court asserted, without explanation, that "findings of guilt
on several counts are necessarily arrived at successively in
time." Id. (emphasis supplied).

The Government reads this language as controlling, and
urges us to hold that Couch’s pleas were "subsequent" and
"successive" based on the language of Deal alone. That
position rests on the Government’s contention that the
Supreme Court’s statement that "findings of guilt on several
counts are necessarily arrived at successively in time" is a
statement of law whereby simultaneous admissions of guilt
are to be considered automatically to be "second or
subsequent." Couch reads the very same language of Deal
to require convictions that follow one another in time, order
or succession. We read the language to mean that, as a
matter of course, Courts always enter findings of guilt on
multiple counts successively. The rest of the footnote
makes clear this "fact" was the grounds for the Supreme
Court’s belief that it would not have to address the meaning
of "second or subsequent." The statement is also dicta,
leaving for this Court a question that the Supreme Court
did not reach in Deal -- the definition of"second or
subsequent" under S 924(c)(1)(C). We take our guidance not
from footnote number one of Deal, but from the statute
itself.

Section S 924(c)(1)(C) imposes the enhanced sentence "[i]n
the case of a second or subsequent conviction under[that]
subsection . . . ." Couch reads into the statute a limitation
based on when the multiple convictions occur. It is true

                                6


that the phrase "second or subsequent" can have the
meaning Couch assigns to it; only next in time, order or
succession. However, "second or subsequent" can also be
used to refer to each item in a group in excess of one. From
the plain language of the statute, with the definitions
assigned to it in Deal, it is clear that"second or
subsequent" is a quantitative term that references each
individual conviction except for one.

Couch’s reading of the statute is even more implausible
than the one advanced in Deal. Indeed the only cognizable
argument in support of it is the very analysis that was
rejected in Deal -- that Congress meant to punish only
those offenders who did not "learn their lessons." Deal, 508
U.S. at 136. It is likely that Congress meant instead to
protect our communities from violent criminals who
repeatedly demonstrate a willingness to employ deadly
weapons by punishing them more harshly. Indeed, in Deal,
the Supreme Court addressed an argument parallel to
Couch’s, that the sequence of qualifying events is critical,
and rejected it, finding that the statute does not require
that the offense used to enhance a penalty occur after the
charge on which a defendant is sentenced.

       It seems to us eminently sensible to punish the second
       murder, for example, with life in prison rather than a
       term of years-- whether or not conviction of the first
       murder (or completion of the sentence for the first
       murder) has yet occurred.

Deal, 508 U.S. at 136-37.

Absurd results flow from Couch’s reading. It would create
an odd rule whereby defendants whose guilty pleas are
taken serially for each count will be subjected to much
harsher sentences than equally culpable defendants who
plead guilty to multiple counts simultaneously. Couch
attempts to analogize the rule he proposes to the
requirement that a prosecutor must file a notice of prior
conviction pursuant to 21 U.S.C. S 851 in order to impose
an enhanced penalty for certain drug offenses. We are
unpersuaded.

Couch’s argument pits hypertextual analysis of the
language of Deal and the statute against common sense

                                7


and rationale in Deal. Couch pled guilty to three counts of
discharging a firearm during three Hobbs Act robberies.
Couch’s indictment, which was incorporated by reference
into the District Court’s statement inviting his plea, listed
the counts successively for violations which clearly
occurred one after another in time. Couch was convicted for
discharging his shotgun when he robbed one supermarket
on December 20, 1999, for discharging his shotgun during
another supermarket robbery on April 13, 2000, and for the
same act at a third supermarket on June 9, 2000. Couch’s
entry of plea satisfies the Deal requirement for multiple
convictions.

This Court has sustained enhanced sentences under
S 924(c)(1) in similar circumstances. In United States v.
Casiano, 113 F.3d 420, 426 (3d Cir. 1997), this Court held
that it matters not whether multiple S 924(c)(1) counts arise
out of the same criminal episode or out of the same act, or
whether they are charged in a single indictment. Pursuant
to Deal, this Court followed the directive of S 924(c)(1)(C),
which focuses only on whether there was a "second or
subsequent conviction." Casiano, 113 F.3d at 425-26; See
United States v. Coates, 178 F.3d 681, 683 (3d Cir. 1999)
(enhancement permitted where second or subsequent
weapons conviction was charged in same indictment). Also
instructive is the Eighth Circuit Court of Appeals’ recent
decision in United States v. Street, 257 F.3d 869, 870 (8th
Cir. 2001), regarding Congress’s use of exactly the same
phrase in another sentencing statute. In Street , the
defendant’s pleas and convictions for two counts of taking
bald and golden eagles in violation of 16 U.S.C.S 668 were
entered simultaneously. That statute provides an enhanced
penalty "in the case of a second or subsequent conviction
for a violation of [that] section," language which echoes the
language of S 924(c)(1)(C) at issue here. 16 U.S.C. S 668(a)
(2000). Pursuant to Deal, the court ruled that the enhanced
sentence was proper for one of that defendant’s two
convictions.

This Court cannot conclude that Congress intended to
punish defendants with multiple serial convictions more
harshly than those with multiple simultaneous convictions.
Nor can we read the selected quotes from Deal so narrowly

                                8


as to undermine the Supreme Court’s interpretation of
S 924(c)(1). Following Deal, we agree with the Sixth Circuit
Court of Appeals that "two distinct violations of the statute
trigger the subsequent sentence enhancement provisions of
S 924(c)(1). Thus, the commission of two violations of
S 924(c)(1) would result in [the sentence provided in
S 924(c)(1)(A)(iii)] for the first conviction and [the enhanced
penalty of S 924(c)(1)(C)(i)] for the second S 924(c)(1)
conviction. " United States v. Nabors, 901 F.2d 1351, 1358-
59 (6th Cir. 1990) (emphasis added). See United States v.
Stewart, 283 F.3d 579 (3d Cir. 2002) (concluding that the
enhanced sentence applies when multiple convictions are
entered simultaneously).

We therefore hold that the phrase "second or subsequent"
in 18 U.S.C. S 924(c)(1)(C) refers to each conviction in
excess of one. In the case of multiple S 924(c)(1) convictions,
whether entered simultaneously or serially, the standard
penalty provided in S 924(c)(1)(A)(iii) should be assigned to
one and the enhanced penalty set forth in S 924(c)(1)(C)(i)
applies to every other.

III. Conclusion

For these reasons, the judgment and sentence of
conviction will be affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                9
