                                                                                  FILED
                                                                      United States Court of Appeals
                                        PUBLISH                               Tenth Circuit

                         UNITED STATES COURT OF APPEALS                   November 18, 2013
                                                                          Elisabeth A. Shumaker
                                    TENTH CIRCUIT                             Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff - Appellant,

 v.
                                                               No. 12-4169
 PHILBERT RENTZ,

           Defendant - Appellee.



              APPEAL FROM THE UNITED STATES DISTRICT COURT
                         FOR THE DISTRICT OF UTAH
                      (D.C. No. 2:11-CR-00771-CW-PMW-1)


Trina A. Higgins, Assistant United States Attorney (David B. Barlow, United States
Attorney, with her on the briefs), Office of the United States Attorney for the District of
Utah, Salt Lake City, Utah, for Plaintiff-Appellant.

Jeremy M. Delicino, Jeremy M. Delicino, LLC, Salt Lake City, Utah (Elizabeth A.
Lorenzo, Jeremy M. Delicino, LLC, Salt Lake City, Utah, and Stephen R. McCaughey,
McCaughey & Metos, Salt Lake City, Utah, with him on the brief), for Defendant-
Appellee.


Before KELLY, MATHESON, and BLACKBURN,* Circuit Judges.


MATHESON, Circuit Judge.

       *
       Honorable Robert E. Blackburn, District Court Judge, District of Colorado, sitting
by designation.
       After Philbert Rentz fired a single gunshot that wounded one victim and killed

another, he was charged with two separate counts of using a firearm during a crime of

violence in violation of 18 U.S.C. § 924(c). Mr. Rentz moved to dismiss the second

§ 924(c) count. The district court granted his motion, holding that § 924(c) cannot

support multiple § 924(c) charges arising from a single use of a firearm. The

Government appeals the pre-trial dismissal of the second § 924(c) count. Exercising

jurisdiction under 18 U.S.C. § 3731, we reverse.

                                    I. BACKGROUND

                                   A. Factual Background

       The relevant factual history is a split second in time—the moment on July 23,

2011, in Indian country, when Philbert Rentz, a member of the Navajo Nation, fired a

single gunshot from his Hi-Point 9 mm carbine. The lone bullet passed through the body

of and seriously injured Verveen Dawes. The same bullet then struck and killed Tedrick

Francis.1

                                 B. Procedural Background




       1
         In his brief, Mr. Rentz has included additional facts suggesting that he was acting
in self-defense or defense of others when he fired his weapon. These facts have not been
stipulated and are not included in the record on appeal. The parties will have full
opportunity to litigate these facts and issues at trial.

                                            -2-
       A grand jury indicted Mr. Rentz on five charges2 —Count I: murder while within

Indian country in violation of 18 U.S.C. § 1111; Count III: use of a firearm in

furtherance of murder in violation of 18 U.S.C. § 924(c); Count IV: assault causing

serious bodily injury while within Indian country in violation of 18 U.S.C. § 113(a)(6);

Count VI: use of a firearm in furtherance of assault in violation of 18 U.S.C. § 924(c);

and Count VII: possession of a firearm by a convicted felon in violation of 18 U.S.C.

§ 922(g).

       Before trial, Mr. Rentz moved to dismiss Count VI (use of a firearm in furtherance

of assault). He argued that (1) Congress did not intend to punish a person for two

violations of § 924(c) based on a single use of a firearm; and (2) punishment on both

Counts III and VI would violate the Double Jeopardy Clause of the Fifth Amendment.3

       In a brief oral ruling, the district court granted Mr. Rentz’s pre-trial motion and

dismissed Count VI, holding that § 924(c) does not permit multiple charges arising from

a single use of a firearm. The Government filed a timely appeal.

                                      II. DISCUSSION


       2
        Counts II and V of the Indictment charged a co-defendant who is not a party to
this appeal.
       3
         As our analysis shows, the proper focus is on whether the underlying offenses—
murder and assault causing serious bodily injury—violate the Double Jeopardy Clause.
We can understand why Mr. Rentz would challenge the two § 924(c) counts themselves
on this ground because any double jeopardy problem with the underlying charges would
extend to the § 924(c) offenses as well. See United States v. Barrett, 496 F.3d 1079,
1095-96 (10th Cir. 2007).

                                             -3-
                                        A. Jurisdiction

       We have jurisdiction over this interlocutory appeal of the district court’s order

dismissing Count VI of the Indictment because 18 U.S.C. § 3731 authorizes us to hear

appeals by the United States “from a decision, judgment, or order of a district court

dismissing an indictment . . . as to any one or more counts, or any part thereof.”

Jurisdiction is proper when the Government challenges the dismissal of one count of a

multi-count indictment. See United States v. Qayyum, 451 F.3d 1214, 1216 (10th Cir.

2006); see also United States v. Schneider, 594 F.3d 1219, 1225-26 (10th Cir. 2010)

(appellate jurisdiction attaches upon dismissal of an entire count or any portion thereof).

                              B. Issues and Standard of Review

       We address (1) whether § 924(c) permits two § 924(c) violations to be charged

based on two underlying crimes of violence arising from a single use of a firearm, and (2)

whether charging the two crimes of violence would violate the Double Jeopardy Clause.4


       4
          On the eve of oral argument, Mr. Rentz submitted a letter under Fed. R. App. P.
28(j) urging that the Government waived its statutory interpretation arguments because
they do not appear in its opening brief. See Anderson v. U.S. Dep’t of Labor, 422 F.3d
1155, 1174 (10th Cir. 2005) (“The failure to raise an issue in an opening brief waives that
issue.”).
       The Government’s brief stated the issue for review as “[w]hether charging two
924(c) counts based on two distinct crimes of violence but a single use of a firearm
violates the Double Jeopardy Clause.” Aplt. Br. at 1.
       Despite its seemingly conflated statement of the issue, the Government has not
waived its statutory construction arguments, though only by a narrow margin. Its
opening brief’s treatment of the standard of review refers to “construing statutes” and
“statutory interpretation,” id. at 4, and the brief discusses Tenth Circuit cases that
interpret § 924(c), id. at 4-7, 9.
                                                                                Continued . . .
                                              -4-
       We review the district court’s statutory interpretation de novo. United States v.

Handley, 678 F.3d 1185, 1189 (10th Cir. 2012). We review the double jeopardy issue de

novo as well. United States v. Ahrensfield, 698 F.3d 1310, 1322 (10th Cir. 2012); United

States v. Morris, 247 F.3d 1080, 1083 (10th Cir. 2001).

                                         C. Analysis

1. Introduction

       18 U.S.C. § 924(c) criminalizes the use of a firearm in connection with a federal

crime of violence or drug trafficking offense. A § 924(c) firearm charge is therefore

derivative in nature. It rests on the commission of an underlying predicate offense—

either a violent or a drug trafficking crime. “[I]t is unnecessary for a criminal defendant

charged with a § 924(c) offense to be separately charged with and convicted of the

underlying offense.” United States v. Barrett, 496 F.3d 1079, 1094 (10th Cir. 2007). But
______________________________________
Cont.

        Moreover, the double jeopardy and § 924(c) issues are entwined. In United States
v. Chalan, 812 F.2d 1302 (10th Cir. 1987), the defendant framed his issue similarly to the
way the Government did in this case—whether two § 924(c) consecutive sentences for
the underlying offenses of robbery and murder violate the Double Jeopardy Clause. We
recast the issue as one of statutory construction—“whether Congress intended by section
924(c) to impose multiple sentences.” Id. at 1315.
        Finally, we have held that the waiver rule is intended to protect appellees by
giving them “the opportunity . . . to present an analysis of the pertinent legal precedent
that may compel a contrary result,” as well as to provide the court with full arguments on
both sides of the issue. Anderson, 422 F.3d at 1175 (quoting Stump v. Gates, 211 F.3d
527, 533 (10th Cir. 2000)). In this case, Mr. Rentz had full opportunity to argue the
statutory interpretation issue—an issue that he himself had raised at the district court—
and he did so in his answer brief. Aplee. Br. at 12. Mr. Rentz has not contended that he
has had inadequate opportunity to present his own statutory interpretation arguments.

                                             -5-
“to establish a violation of § 924(c), the Government must prove . . . the Defendant[]

committed the underlying crime of violence.” United States v. Shuler, 181 F.3d 1188,

1189-90 (10th Cir. 1999).

       Mr. Rentz is charged with two predicate offenses—murder and assault causing

serious bodily injury. It would likely be uncontested in most cases that these two

predicate offenses would support two § 924(c) derivative offenses. But this case arises

from the unusual circumstance of a single gunshot causing both predicate offenses.

       Our analysis proceeds as follows. First, we examine the language of § 924(c) and

our precedent and conclude that the statute allows two § 924(c) charges based on a single

gunshot. Second, we determine that the offenses underlying Mr. Rentz’s § 924(c)

charges—murder and assault causing serious bodily injury—do not violate the Double

Jeopardy Clause. Finally, we address the district court’s decision, which overlooked

Tenth Circuit precedent.

       We conclude that the two § 924(c) charges here are proper and that the district

court erred in dismissing one of them.

2. Whether § 924(c) Permits Multiple Charges

       a. Statutory Language

       We begin with the text of the statute. See Handley, 678 F.3d at 1189. Section

§ 924(c)(1)(A) states:

       [A]ny person who, during and in relation to any crime of violence or drug
       trafficking crime (including a crime of violence or drug trafficking crime
       that provides for an enhanced punishment if committed by the use of a
                                            -6-
       deadly or dangerous weapon or device) for which the person may be
       prosecuted in a court of the United States, uses or carries a firearm . . .
       shall, in addition to the punishment provided for such crime of violence or
       drug crime—
               ...
               (iii) if the firearm is discharged, be sentenced to a term of
       imprisonment of not less than 10 years.

       Our task is to determine the proper “unit of prosecution” under this statute—that

is, whether § 924(c) can support multiple charges arising from a single use of a firearm,

or whether each § 924(c) charge must be predicated upon a separate use of a firearm.

       The word “any” in “during and in relation to any crime of violence” (emphasis

added) suggests that Congress intended to punish an armed offender with a separate

§ 924(c) count for each underlying violent crime. We do not think the phrase “uses . . . a

firearm” overcomes this understanding of the text, though we note that three circuits

consider the statute to be ambiguous. See United States v. Phipps, 319 F.3d 177, 184-85

(5th Cir. 2003); United States v. Finley, 245 F.3d 199, 207 (2d Cir. 2001); United States

v. Wilson, 160 F.3d 732, 749-50 (D.C. Cir. 1998). But see United States v. Sandstrom,

594 F.3d 634, 659 (8th Cir. 2010). Nonetheless, our precedent answers the issue

presented here.

       b. Applicable Precedent

       First, we examine Tenth Circuit cases analyzing the unit of prosecution under

§ 924(c). They hold that multiple § 924(c) firearm charges arising from the same

criminal episode are proper when there are multiple underlying violent or drug-

trafficking offenses. Second, we discuss United States v. Barrett, which specifically
                                            -7-
holds that a single gunshot can give rise to multiple § 924(c) charges. See 496 F.3d at

1095-96.

              i. Cases Analyzing Multiple Charges Under § 924(c)

       Our cases recognize that multiple § 924(c) counts are permitted based on a single

criminal episode. They hold that the only issue to be decided is whether the underlying

violent or drug-trafficking offenses themselves can be charged together without violating

the Double Jeopardy Clause. We have held repeatedly that “[i]n the context of a single

prosecution, where the offenses underlying separate 924(c) counts cover the same

criminal episode, we must limit our review to whether Congress intended multiple

convictions and sentences for the underlying offenses.” United States v. Sturmoski, 971

F.2d 452, 461 (10th Cir. 1992). Multiple § 924(c) counts are permissible so long as the

underlying offenses are separate for double jeopardy purposes. See United States v.

Chalan, 812 F.2d 1302, 1315-17 (10th Cir. 1987).

       Both Sturmoski and Chalan addressed double jeopardy challenges rather than

challenges premised on statutory interpretation of § 924(c) itself. But in United States v.

Malone, 222 F.3d 1286 (10th Cir. 2000), the defendant argued—as Mr. Rentz does

here—that § 924(c) itself did not authorize two firearm charges when the two predicate

offenses were part of a continuous course of conduct. Id. at 1292-93. On plain error

review, we concluded that “our precedent forecloses this argument.” Id. at 1293. We

held that Tenth Circuit cases, including Sturmoski and Chalan, “implicitly . . .

determine[d] whether one or two convictions for [separate] underlying offenses could be
                                            -8-
maintained under the language of the statute.” Id. We found these cases “controlling”

and held that the proper “unit of prosecution” under § 924(c) is a single underlying

offense—meaning that two convictions under § 924(c) arising from the same course of

conduct were proper under the language of § 924(c).

       Based on this unit of prosecution analysis, we have consistently allowed multiple

§ 924(c) counts when each one is based on a drug trafficking crime or a crime of violence

arising from conduct occurring within a brief period of time. See id. (upholding two

§ 924(c) convictions for using a firearm in relation to the crimes of robbery and

carjacking arising from a continuous course of conduct); United States v. Floyd, 81 F.3d

1517, 1527 (10th Cir. 1996) (permitting two § 924(c) counts for underlying offenses of

kidnapping and carjacking in a single incident); United States v. Callwood, 66 F.3d 1110,

1114-15 (10th Cir. 1995) (upholding three convictions under § 924(c) tied to three

separate drug-related offenses in a single criminal episode); Sturmoski, 971 F.2d at 461-

62 (upholding sentences on two § 924(c) counts for the crimes of maintaining an

establishment for the purpose of methamphetamine manufacture and attempting to

manufacture methamphetamine).

       We have further upheld multiple convictions under § 924(c) arising from the same

criminal conduct. See United States v. Renteria, 720 F.3d 1245, 1256 (10th Cir. 2013)

(upholding under plain error review separate § 924(c) charges for possession of

methamphetamine with intent to distribute and conspiracy to traffic in

methamphetamine); Barrett, 496 F.3d at 1095-96 (permitting two § 924(c) counts for
                                            -9-
using a firearm in relation to drug-trafficking crimes as well as a crime of violence, where

both charges were based on the same use of a firearm).

       Mr. Rentz argues that the preceding cases do not determine the outcome here

because the facts of this case are unique and present an issue of first impression in this

circuit. He asserts this court has never addressed whether a single act, rather than a

single criminal episode or course of conduct, can give rise to multiple charges under

§ 924(c). According to Mr. Rentz, all of the cases in which we have held that a separate

§ 924(c) charge can be predicated on each underlying offense have involved continuous

criminal conduct rather than a lone act. He argues that these precedents do not control

here because he fired only a single gunshot.

       Mr. Rentz, however, is wrong that we have never considered a “single act” case

because we did so in United States v. Barrett.

              ii.    United States v. Barrett

       In Barrett, we addressed the scenario of a single gunshot giving rise to two

underlying offenses and two § 924(c) counts—the same scenario in Mr. Rentz’s case.

And in Barrett, we upheld both § 924(c) charges because the underlying offenses were

separate for double jeopardy purposes. Barrett, 496 F.3d at 1095-96.

       Kenneth Barrett was involved in a shoot-out with police officers executing a

search warrant on his home for methamphetamine and other evidence of drug-trafficking

crimes. Id. at 1082-85. Trooper David Eales of the Oklahoma Highway Patrol’s Tactical

Team was struck by three gunshots from “continuous gunfire” as he emerged from a
                                            -10-
vehicle at Mr. Barrett’s residence. Id. at 1084-85. A later crime scene investigation

determined that Mr. Barrett had fired approximately 19 shots at law enforcement officers.

Three of these shots hit Trooper Eales—one in his chest, one in his flank, and one in his

arm. The gunshot wound to the chest struck Trooper Eales’s aorta, and this injury was

determined to be the cause of his death. Id. at 1085.

       Mr. Barrett was convicted of two counts in violation of 18 U.S.C. §§ 924(c)(1)(A)

and 924(j)5: (1) using a firearm “during and in relation to several drug-trafficking crimes,

resulting in the death of a state law enforcement officer”; and (2) using a firearm “during

and in relation to the killing of a state law enforcement officer engaged in or on account

of the performance of such officer’s duties.” Id. at 1082. He was not separately charged

with the offenses underlying these two counts. Id. at 1093-94. To convict him on both

§ 924(c) counts, however, the jury was required to find that Mr. Barrett had “committed

at least one underlying offense with respect to each Count 1 and 2.” Id. at 1094.

       Relying on Sturmoski, 971 F.2d at 461, we held that Counts 1 and 2 charging

§ 924(c) offenses6 were both proper because Mr. Barrett’s underlying offenses—(1)

“several drug-trafficking crimes resulting in the death of a state law enforcement officer”


       5
        18 U.S.C. § 924(j) provides that “[a] person who, in the course of a violation of
subsection (c), causes the death of a person through use of a firearm, shall—if the killing
is a murder . . . be punished by death or by imprisonment for life; and if the killing is
manslaughter (as defined in section 1112), be punished as provided in that section.”
       6
        Section 924(j) adds to a § 924(c) offense a sentencing enhancement for murder
or manslaughter.

                                            -11-
and (2) killing a state law enforcement officer—were distinct. Id. at 1096.

       Mr. Rentz attempts to distinguish Barrett as involving “a single, continuous use of

a firearm,” Aplee. Br. at 7 (quoting Barrett, 496 F.3d at 1096), rather than a single act.

Yet the same single gunshot—the fatal shot to Trooper Eales’s chest—produced both

predicate offenses underlying Mr. Barrett’s two § 924(c) charges. Count 1 required proof

that Mr. Barrett “committed one or more of the predicate drug-trafficking offenses” and

that “in the course of using the firearm Barrett killed Eales.” Barrett, 496 F.3d at 1095.

Count 2 required the Government to prove that Barrett committed the predicate offense

of killing a state law enforcement officer engaged in his duties. Id. at 1095-96. Although

Mr. Barrett fired a stream of shots, only the single shot to Trooper Eales’s chest satisfied

the required elements of the §§ 924(c)(1)(A) and 924(j) offenses.

       Mr. Rentz fired only one bullet, and Mr. Barrett fired several shots in addition to

the one that killed Trooper Eales. But this distinction makes no difference. If we were to

draw the line at “single gunshot” cases, as Mr. Rentz urges us to do, we would be forced

to dismiss Mr. Rentz’s second § 924(c) charge in the instant case, but permit two § 924(c)

charges under Barrett if Mr. Rentz had fired additional warning shots into the air along

with the single bullet that wounded Mr. Dawes and killed Mr. Francis.

       If anything, the present case lends itself more readily to multiple § 924(c) charges

than Barrett does. Mr. Rentz shot two victims. In Barrett, both charges stemmed from a

single injury to a single victim—the fatal gunshot wound to Trooper Eales’s chest. Yet in

Barrett, we continued to apply our long-held rule that multiple underlying offenses can
                                            -12-
support separate § 924(c) charges so long as double jeopardy is not implicated. Id. at

1096 (citing Sturmoski, 971 F.2d at 461); accord Sandstrom, 594 F.3d at 659 (upholding

two § 924(c) convictions arising from a single gunshot because “the defendants ‘used’

the firearm at issue in both counts to commit separate offenses, even though the offenses

occurred simultaneously”). The principle of stare decisis compels us to do the same here

and hold, as in Barrett, that multiple § 924(c) charges are permissible so long as the

underlying violent or drug-trafficking offenses are separate for double jeopardy

purposes.7

3. Whether the Underlying Crimes Violate Double Jeopardy

       Because we conclude that § 924(c) can support multiple charges arising from a

single act, we must now decide whether Mr. Rentz’s underlying charges—murder and

       7
         We note that Barrett arose from a constitutional double jeopardy challenge. 496
F.3d at 1095. But the court’s decision includes statutory construction of § 924(c).
       The court in Barrett framed the question presented as whether the two § 924(c)
counts “were based on a single ‘unit of prosecution.’” Id. Supreme Court precedent
indicates that the “unit of prosecution” is a matter of statutory interpretation. The Court
has recognized that Congress “define[s] a statutory offense by its prescription of the
‘allowable unit of prosecution’. . . . Whether a particular course of conduct involves one
or more distinct ‘offenses’ under the statute depends on this congressional choice.”
Sanabria v. United States, 437 U.S. 54, 69-70 (1978); see also Bell v. United States, 349
U.S. 81, 81 (1955) (describing the “unit of prosecution” issue as a matter of statutory
construction). Because we said in Barrett that we were determining the unit of
prosecution, it follows that Barrett addressed the statutory construction of § 924(c).
       In Malone, 222 F.3d 1286, we concluded that our prior cases—including
Sturmoski and Chalan—implicitly held that as a matter of statutory interpretation,
§ 924(c) allows for multiple firearm charges arising from a single course of conduct. Id.
at 1292-93. Because Barrett linked the § 924(c) unit of prosecution to the double
jeopardy analysis, it implied that § 924(c) itself permits multiple charges arising from a
single use of a firearm.

                                            -13-
assault resulting in serious bodily injury—violate double jeopardy. We conclude they do

not.

       The Fifth Amendment Double Jeopardy Clause provides that no “person be

subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const.

amend. V. It protects criminal defendants “against multiple punishments for the same

offense imposed in a single proceeding.” Jones v. Thomas, 491 U.S. 376, 381 (1989)

(quotations omitted). In this case, convictions under the criminal statutes for murder and

assault causing serious bodily injury would both punish Mr. Rentz for firing his gun once.

We must decide “whether Congress intended multiple convictions and sentences under

the statutes.” United States v. Morehead, 959 F.2d 1489, 1506 (10th Cir. 1992). When,

as here, Congress has not specified that a defendant can be charged under both the

murder and assault-causing-serious-bodily-injury statutes for the same conduct, “we

apply the well-settled ‘rule of statutory construction’” from Blockburger v. United States,

284 U.S. 299 (1932). Morehead, 959 F.2d at 1506.

       “[W]here the same act or transaction constitutes a violation of two distinct

statutory provisions,” the Blockburger test asks “whether each provision requires proof of

a fact which the other does not.” Blockburger, 284 U.S. at 304. “Because we must

assume that Congress legislated with Blockburger in mind, we presume, absent express

Congressional intent to the contrary, that Congress intended multiple convictions and

sentences for the same criminal behavior which violates more than one statute when each

statute requires proof of a fact that the other does not.” Morehead, 959 F.3d at 1506
                                           -14-
(citation omitted). We focus on the statutory elements of each offense, “notwithstanding

a substantial overlap in the proof offered to establish the crimes.” Ianelli v. United

States, 420 U.S. 770, 785 n.17 (1975).

       The offenses underlying Mr. Rentz’s firearm charges are separate under the

Blockburger test. Count I charges Mr. Rentz with second degree murder8 while within

Indian country, in violation of 18 U.S.C. §§ 1111 and 1153(a). The elements of second

degree murder require proof that (1) the defendant caused the death of the victim; (2) the

defendant killed the victim with malice aforethought; and (3) the killing took place within

the territorial Indian country jurisdiction of the United States under 18 U.S.C. § 1153.

Tenth Circuit Pattern Criminal Jury Instructions Criminal § 2.53, at 181 (2011) (Murder

in the Second Degree). Count IV charges Mr. Rentz with assault resulting in serious

bodily injury while within Indian country in violation of 18 U.S.C. §§ 113(a)(6) and

1153(a). The elements of that offense require proof that (1) the defendant knowingly

assaulted the victim; (2) the assault caused serious bodily injury to the victim; and (3) the

assault took place within Indian country jurisdiction under § 1153. See 18 U.S.C.




       8
         The Indictment charges Mr. Rentz with having “unlawfully killed Tedrick
Francis with malice aforethought while within Indian country.” Appx. at 17. 18 U.S.C.
§ 1111 enumerates categories of murder that constitute murder in the first degree. “Any
other murder is murder in the second degree.” Id. Because Mr. Rentz is not charged with
any of the enumerated categories of first degree murder, we examine the elements of
second degree murder here. The Government also focuses on second degree murder in
its opening brief. Aplt. Br. at 8.

                                            -15-
§ 113(a)(6); see also United States v. Benally, 146 F.3d 1232, 1237-38 (10th Cir. 1998)

(assault under § 113(a)(6) is a general intent crime).

       Each underlying offense in this case requires proof of an element that the other

does not. Count I requires proof that Mr. Rentz caused the death of Mr. Francis with

malice aforethought. Count IV, on the other hand, requires proof that Mr. Rentz

knowingly assaulted Mr. Dawes, causing him serious bodily injury. See United States v.

Good Bird, 197 F.3d 1203, 1204-05 (8th Cir. 1999) (holding that assault resulting in

serious bodily injury and second degree murder are “completely separate” offenses for

double jeopardy purposes, even though both crimes involved the same victim.); cf. Diaz

v. United States, 223 U.S. 442, 448-49 (1912) (holding that double jeopardy was not

implicated when a defendant was tried for assault, then subsequently tried for murder

after the victim of the assault passed away a few weeks later). The two underlying

charges therefore satisfy the Blockburger test and do not implicate double jeopardy. And

because Mr. Rentz’s murder and assault charges are separate, we must hold that both

§ 924(c) counts are proper.

4. District Court Analysis

       We address briefly the district court’s four reasons for holding that § 924(c)

cannot support multiple charges arising from a single use of a firearm.   First, it referred

to extra-circuit cases holding that each § 924(c) count must be predicated on a separate

use of a firearm and mentioned a Second Circuit case, Finley, 245 F.3d at 206, as an

example. Second, it said “that the statute and its language presupposes a second action”
                                            -16-
every time a new § 924(c) charge attaches. Third, it reasoned that the “logic of applying

a deterrent” counsels in favor of requiring a separate act for each § 924(c) charge.

Finally, it applied the rule of lenity to interpret the statute in Mr. Rentz’s favor. See

Appx. at 59.9

       a. Precedent

       The district court erred by failing to apply Tenth Circuit precedent. Although

other circuits have interpreted § 924(c) to permit only one firearm charge when a

defendant has used a firearm once, we have held to the contrary, as explained above.

       b. Statutory Language

       The district court’s statement that “the statute and its language presupposes a

second action,” Appx. at 59, meaning that a second use of a firearm is required before a

second § 924(c) count can be charged, may find support in the “uses . . . a firearm”

phrase in the statute. But as we have explained, the phrase “during and in relation to any

crime of violence” suggests that Congress intended to allow a separate § 924(c) firearm

charge connected to each underlying violent or drug-trafficking offense. Tenth Circuit

precedent supports this latter interpretation.

       c. Deterrence




       9
         Although the Government’s opening brief does not contain arguments regarding
deterrence and the rule of lenity, Mr. Rentz invited the Government’s reply to these
issues in his own brief.

                                             -17-
       The district court said: “I believe that, consistent with the intent of Congress, that

this act is a deterrent. If you’re talking about a single act, the logic of applying a

deterrent does not apply.” Appx. at 59. Although we agree that § 924(c) was enacted “to

deter the use of firearms in connection with the commission of federal felonies,” United

States v. Lanzi, 933 F.2d 824, 826 (10th Cir. 1991), allowing multiple § 924(c) charges to

arise from a single use of a firearm, including in this case, is consistent with that purpose.

The possibility of facing multiple § 924(c) charges can and should deter an offender from

firing his or her gun in the direction of two or more people.

       d. Rule of Lenity

       The district court’s rule of lenity rationale, Appx. at 59, again runs afoul of our

precedent. The Supreme Court recently confirmed that the rule applies when there is

“grievous ambiguity or uncertainty in the statute such that the Court must simply guess as

to what Congress intended.” Maricich v. Spears, 133 S. Ct. 2191, 2209 (2013) (quotation

and citation omitted); see United States v. Serawop, 505 F.3d 1112, 1122-23 (10th Cir.

2007). Our cases provide much more than a “guess.” United States v. Barrett in

particular holds that the two § 924(c) charges are permissible here.

                                    III. CONCLUSION

       The district court failed to apply Tenth Circuit precedent when it dismissed Count

VI of the Indictment. We have repeatedly held that 18 U.S.C. § 924(c) can give rise to

multiple charges arising from a single criminal episode, so long as the underlying

offenses can be charged without violating double jeopardy. As the Barrett case
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demonstrates, this rule applies in cases such as this one where two § 924(c) charges and

their underlying offenses arise from a single gunshot. For the foregoing reasons, the

order of the district court is reversed.




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