PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.
                                                    No. 95-5473
LEWIS CHARLES TERRY, JR.; CARLOS
LEE BISHOP,
Defendants-Appellees.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                  No. 95-5474

CARLOS LEE BISHOP,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                  No. 95-5478

LEWIS CHARLES TERRY, JR.,
Defendant-Appellant.

Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-94-107-R)

Argued: April 5, 1996

Decided: June 12, 1996
Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Reversed in part, vacated in part, and remanded by published opinion.
Judge Michael wrote the opinion, in which Chief Judge Wilkinson
and Senior Judge Butzner joined.

_________________________________________________________________

COUNSEL

ARGUED: Lisa J. Stark, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellant. James Robert Cromwell,
VOGEL & CROMWELL, L.L.C., Roanoke, Virginia, for Appellees.
ON BRIEF: Deval L. Patrick, Assistant Attorney General, Dennis J.
Dimsey, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C., for Appellant. Sharon Chickering, DLC TRIAL LAW-
YERS, P.C., Roanoke, Virginia, for Appellee Terry.

_________________________________________________________________

OPINION

MICHAEL, Circuit Judge:

Because they shot at an occupied vehicle (a crime under Virginia
law) while in a national forest, Lewis Charles Terry and Carlos Lee
Bishop were convicted for violating the Assimilative Crimes Act, 18
U.S.C. § 13(a) (the "ACA"), and for using a firearm in connection
with a crime of violence, in violation of 18 U.S.C.§ 924(c). At sen-
tencing the district court dismissed the § 924(c) count as to both
defendants on double jeopardy grounds. The government appeals the
dismissal of the gun count, and the defendants cross-appeal their sen-
tences on the ACA count. Both defendants claim that the district court
erred in applying the "Aggravated Assault" guideline, see U.S.S.G.
§ 2A2.2(a), and Terry further claims that the court erred in failing to
accord him "minor participant" status, see U.S.S.G. § 3B1.2(b).

We reverse the dismissal of the § 924(c) count, and we order that
the defendants' convictions on that count be reinstated. We affirm the

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district court's sentencing determinations on the ACA count, except
for one matter. Because reinstatement of the convictions on the
§ 924(c) count will affect how the sentence for the ACA count is cal-
culated, we vacate the sentences and remand for resentencing on both
counts.

I.

Drunk after a successful day of turkey hunting, Terry and Bishop
drove along Wildlife Road in the Jefferson National Forest, a federal
reserve located in Virginia. They were in Bishop's full sized station
wagon. Terry was driving and Bishop was riding in the passenger's
seat. Two shotguns and one dead turkey were in the back.

Raymond Ellis drove up behind Terry and Bishop in his pickup
truck. Because Wildlife Road is very narrow, Terry pulled over to let
Ellis pass. As Ellis passed, Terry noticed that Ellis is black. Terry and
Bishop are white. Terry said to Bishop, "Let's kill this son of a bitch-
ing nigger." Bishop reached into the back of the station wagon for his
twelve-gauge shotgun. As Terry drove, Bishop loaded his gun and
shot at Ellis' truck. After Bishop began shooting, Ellis accelerated in
an effort to get away, but Terry sped up as well, allowing Bishop to
continue to reload and shoot. Bishop admitted that he fired several
times, but he was not sure of the exact number of shots. Ellis eventu-
ally escaped unharmed, but his truck required $2,869.89 worth of
repairs.

A federal grand jury in the Western District of Virginia indicted
Bishop and Terry on two counts. The first count charged that they
"did unlawfully and maliciously shoot at an occupied vehicle, putting
in peril the life of the occupant therein," in violation of Va. Code
Ann. § 18.2-154, assimilated as a federal charge under the ACA, 18
U.S.C. § 13(a). The second count charged that Bishop and Terry used
or carried a firearm in relation to a crime of violence, in violation of
18 U.S.C. § 924(c). Each man was convicted of both counts, Bishop
upon a guilty plea and Terry after a jury trial. At the defendants' sen-
tencing the district court (on its own motion) dismissed the § 924(c)
count, holding that to convict for both counts would violate the Fifth
Amendment's prohibition against double jeopardy. On the remaining

                     3
ACA count, Terry was sentenced to 62 months of imprisonment and
Bishop to 25 months.1

II.

We agree with the government that conviction on both the ACA
count and the gun count is not double jeopardy. Each offense contains
one statutorily-mandated element that the other does not, and Con-
gress has not expressed a clear intention that multiple punishment not
be imposed. Accordingly, the district court erred in dismissing the
§ 924(c) count.

If Congress clearly authorizes multiple punishments for the same
act or transaction, the Double Jeopardy Clause is not offended when
the multiple punishments are imposed after a single trial. Albernaz v.
United States, 450 U.S. 333, 344 (1981). The task, then, is to deter-
mine whether Congress intended multiple punishment to apply.

Our inquiry into Congressional intent is guided by the Supreme
Court's decision in Blockburger v. United States , 284 U.S. 299
(1932). We first examine whether proof of each crime"requires proof
of an additional fact which the other does not." Id. at 304. If the
statutorily-defined elements of the crimes charged overlap (for exam-
ple, where one crime is a lesser-included offense of the other), then
a court must presume that Congress did not intend multiple punish-
ment. Rutledge v. United States, 64 U.S.L.W. 4238, 4239 & n.6 (U.S.
Mar. 27, 1996). This presumption may be overcome only if Congress
has otherwise clearly indicated its desire to authorize multiple punish-
ment. Id. at 4241; Albernaz, 450 U.S. at 338-40; Whalen v. United
States, 445 U.S. 684, 692 (1980). If, however, the statutory elements
of the two crimes do not overlap, then multiple punishments are pre-
sumed to be authorized absent a clear showing of contrary Congres-
sional intent. Albernaz, 450 U.S. at 340; United States v. Allen, 13
F.3d 105, 108-09 (4th Cir. 1993).
_________________________________________________________________

1 Bishop testified at trial against Terry, and upon the government's sub-
stantial assistance motion under U.S.S.G. § 5K1.1, the district court
departed below Bishop's guideline range of 27 to 33 months.

                    4
The district court found that the elements of the two crimes
charged overlap, saying "you have to actually pick up the weapon and
fire into the vehicle to be guilty of" violating the Virginia statute. But
a careful examination of the statutes at issue here reveals that the dis-
trict court erred in its application of Blockburger, and thereby misread
Congressional intent.

The ACA provides in relevant part:

          Whoever within [the special maritime and territorial juris-
          diction of the United States] is guilty of any act or omission
          which, although not made punishable by any enactment of
          Congress, would be punishable if committed or omitted
          within the jurisdiction of the State, Territory, Possession or
          District in which such place is situated, by the laws thereof
          in force at the time of such act or omission, shall be guilty
          of a like offense and subject to a like punishment.

18 U.S.C. § 13(a). In this case the federalized offense was the Vir-
ginia crime of shooting or throwing a missile at an occupied vehicle:

          Any person who maliciously shoots at, or maliciously
          throws any missile at or against, any . . . motor vehicle or
          other vehicles when occupied by one or more persons,
          whereby the life of any person . . . in such motor vehicle or
          other vehicle, may be put in peril, shall be guilty of a Class
          4 felony.

Va. Code Ann. § 18.2-154 (1995 Supp.).

The second count charged was a violation of 18 U.S.C. § 924(c),
which provides that a person who, "during and in relation to any
crime of violence [or drug-trafficking offense] for which he may be
prosecuted in a court of the United States, uses or carries a firearm,
shall" be sentenced to five years imprisonment, such sentence to run
consecutively to any other sentence imposed under any other count of
conviction.

In fact, the elements of the two crimes do not overlap. Section
924(c) does not require the involvement of a motor vehicle, nor does

                     5
it require that any person's life "be put in peril," as the Virginia stat-
ute requires. Contrary to what the district court believed, the Virginia
statute does not require the involvement of a firearm, as § 924(c)
requires. By its terms, the Virginia statute prohibits the shooting or
throwing of "any missile" at or against an occupied vehicle. Thus, a
person may violate the Virginia statute by standing on an overpass
and throwing a rock at a car passing beneath. See Willis v.
Commonwealth, 393 S.E.2d 405, 412-13 (Va. Ct. App. 1990); see
also Highway Violence a Gratuitous Death, Virginian-Pilot & Ledger
Star (Norfolk, Va.), Apr. 11, 1995, at A12 (rock); Suffolk Crime
Report, Virginian-Pilot & Ledger Star (Norfolk, Va.), Nov. 10, 1994,
at 22 (pumpkin); Rock-Throwing on I-66, Washington Post, Sept. 3,
1993, at B4 (rocks and bottles). Even though in this case the missile
of choice was fired from a gun, for purposes of double jeopardy anal-
ysis we examine only the statutory elements to determine if the ele-
ments of the two crimes charged necessarily overlap. Blockburger,
284 U.S. at 304; Allen, 13 F.3d at 109 n.4. Because each crime
charged contains an element that the other does not, the statutes pass
the Blockburger test. Accordingly, we presume that Congress
intended § 924(c)'s mandatory five-year consecutive sentence to be
imposed here.

The burden thus falls on the defendants to overcome this presump-
tion, a burden they have failed to carry. Section 924(c) by its terms
applies to "any crime of violence . . . which [ ] may be prosecuted in
a court of the United States" (emphasis supplied). Furthermore, the
section also says, "Notwithstanding any other provision of law, the
court shall not place on probation or suspend the sentence of any per-
son 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" (emphasis supplied). We have held
that § 924(c) authorizes enhanced punishment for all federal crimes
in which a gun is used or carried. United States v. Camps, 32 F.3d
102, 108 (4th Cir. 1994), cert. denied, 115 S. Ct. 1118 (1995); United
States v. Shavers, 820 F.2d 1375, 1378 (4th Cir. 1987); see also
United States v. Handford, 39 F.3d 731, 733-34 (7th Cir. 1994). And
it is a federal crime to violate the ACA. See United States v.
Sharpnack, 355 U.S. 286, 289-92 (1958); United States v. Press Pub-
lishing Co., 219 U.S. 1, 10 (1911); United States v. Harris, 27 F.3d
111, 115 (4th Cir. 1994).

                     6
The defendants argue that § 924(c)'s legislative history supports
their claim that Congress clearly intended to prohibit punishment
under both the ACA and § 924(c). We need not examine the legisla-
tive history, however, because the text of § 924(c) plainly authorizes
consecutive punishment. "[W]hen a statute speaks with clarity to an
issue, judicial inquiry into the statute's meaning, in all but the most
extraordinary circumstance, is finished." Metropolitan Stevedore Co.
v. Rambo, 115 S. Ct. 2144, 2147 (1995) (quoting Estate of Cowart v.
Nicklos Drilling Co., 505 U.S. 469, 475 (1992)); see also Albernaz,
450 U.S. at 340-41.

The defendants rely on United States v. King, 824 F.2d 313 (4th
Cir. 1987), but that case does not suggest the existence of any textual
ambiguity here. In King we examined a statute, 18 U.S.C. § 3013,
imposing a mandatory special assessment on any person "convicted
of an offense against the United States." We held that the special
assessment may be imposed for assimilated crimes only where state
law authorizes "like punishment." King, 824 F.2d at 317-18. Virginia
provides a penalty of two to ten years in prison for the crime of mali-
ciously shooting at an occupied vehicle. See Va. Code Ann. § 18.2-
10(d) (1995 Supp.). Therefore, so long as enhancing the defendant's
sentence pursuant to 18 U.S.C. § 924(c) does not result in a total sen-
tence greater than ten years, § 924(c) and the ACA are completely
consistent with one another. United States v. Young, 916 F.2d 147,
150 (4th Cir. 1990). The parties agree that on resentencing neither
defendant will face a sentence in excess of ten years. Thus, in this
case § 924(c) authorizes punishment like that authorized by Virginia
law.

Because punishment (and therefore conviction) on both counts was
proper, the district court erred in dismissing the§ 924(c) count. The
convictions on that count must be reinstated.

III.

The defendants cross-appealed their sentences on the ACA count
(count one), claiming that the district court improperly calculated
their respective offense levels under the sentencing guidelines. We
believe the district court applied the guidelines correctly with respect
to count one.

                     7
A.

The district court applied the guideline for "Aggravated Assault"
and assigned the defendants a base offense level of fifteen. See
U.S.S.G. § 2A2.2(a). The defendants argue that the court instead
should have applied the guideline for "Property Damage or Destruc-
tion" and assigned a base offense level of four. See U.S.S.G.
§ 2B1.3(a). We believe the district court applied the correct guideline.

No guideline expressly covers the crime of shooting at an occupied
vehicle. When no guideline expressly covers the crime of conviction,
the sentencing court must "apply the most analogous offense guide-
line." U.S.S.G. § 2X5.1. In determining which guideline is most anal-
ogous, the sentencing court must, as the district court did here, look
to "the offense conduct charged in the count of the indictment or
information of which the defendant was convicted." U.S.S.G.
§ 1B1.2(a).

The indictment in this case charged that the defendants "did unlaw-
fully and maliciously shoot at an occupied vehicle, putting in peril the
life of the occupant therein" (emphasis supplied). According to the
Guidelines, "`Aggravated assault' means a felonious assault that
involved (a) a dangerous weapon with intent to do bodily harm (i.e.,
not merely to frighten), or (b) serious bodily injury, or (c) an intent
to commit another felony." U.S.S.G. § 2A2.2, Commentary (n.1). The
Guidelines do not define the term, "Property Damage or Destruction."

The defendants argue that United States v. Lambert, 994 F.2d 1088
(4th Cir. 1993), requires that the more lenient property damage guide-
line be applied. There the defendant was charged with "attempting to
damage and disable a motor vehicle with reckless disregard for
human life while the vehicle was operated and employed in interstate
commerce." Id. at 1090. We held that the property damage guideline
was more analogous to the charged conduct than was the guideline
actually applied, former U.S.S.G. § 2E1.5 (extortion in violation of
the Hobbs Act).2 The district court's primary error in Lambert was
that, in an effort to determine the true nature and gravity of the defen-
_________________________________________________________________

2 This guideline is now subsumed under U.S.S.G. §§ 2B3.2 & 2B3.3.

                    8
dant's crime, it looked outside the conduct described in the indict-
ment. Lambert, 994 F.2d at 1091-92. The district court here
committed no such error.

In any event, we believe the indictment in this case describes con-
duct much more serious than simple property damage and more seri-
ous than that charged in Lambert. Here the indictment charges that the
defendants acted with malice and that they actually imperiled the life
of another person. We recognize that the conduct described in the
indictment does not match the Guidelines' definition of aggravated
assault perfectly, but a perfect match is not required. The defendants'
argument fails because the conduct charged in the indictment is more
like aggravated assault than like property damage or destruction.
Lambert, 994 F.2d at 1092 & n.3; see also United States v. Daniels,
948 F.2d 1033, 1036 (6th Cir. 1991) (per curiam) (shooting into an
occupied bus properly classified as "aggravated assault"), cert.
denied, 503 U.S. 912 (1992). The district court did not err in deter-
mining the defendants' base offense level.

B.

Terry claims the district court erred by refusing to grant him a two-
point decrease in his offense level for being a"minor participant" in
the crime. See U.S.S.G. § 3B1.2(b). He claims he is entitled to an
offense level decrease because he merely drove and never fired a shot.
We affirm the district court's refusal to adjust Terry's offense level.

"For purposes of § 3B1.2(b), a minor participant means any partici-
pant who is less culpable than most other participants." U.S.S.G.
§ 3B1.2, Commentary (n.3). A denial of a decrease in offense level
on the basis of the defendant's "minor participant" status will be
upheld unless the district court's decision was clearly erroneous. See
United States v. Madera-Gallegos, 945 F.2d 264, 269 (9th Cir. 1991);
United States v. Palinkas, 938 F.2d 456, 460 (4th Cir. 1991). The dis-
trict court's finding that Terry was not a minor participant is sup-
ported in the record. Bishop testified at Terry's trial that it was
Terry's idea to chase Ellis, and Terry's decision to keep driving
allowed Bishop to continue to shoot. Furthermore, we have held that
it is not clearly erroneous to refuse a "minor participant" adjustment
for a defendant whose only involvement in the criminal activity

                    9
charged was to drive his confederates to and from the scene of the
crime while knowing of their plans. United States v. Sharp, 927 F.2d
170, 176 (4th Cir.), cert. denied, 502 U.S. 844 (1991). We do not
believe the district court clearly erred in finding that Terry's role was
not minor.

IV.

The district court increased the defendants' offense levels by five
pursuant to U.S.S.G. § 2A2.2(b)(2)(A) (discharge of a firearm in con-
nection with aggravated assault). Given our ruling in part I that the
firearms count must be reinstated, the five-level enhancement may not
be applied to the ACA count. When a consecutive five-year sentence
is imposed pursuant to 18 U.S.C. § 924(c)"in conjunction with a sen-
tence for an underlying offense, any specific offense characteristic for
the possession, use, or discharge of an explosive or firearm . . . is not
to be applied in respect to the guideline for the underlying offense."
U.S.S.G. § 2K2.4, Commentary (n.2).

V.

The order of the district court dismissing count two of the indict-
ment is reversed, and the convictions on that count will be reinstated.
The defendants' sentences on count one of the indictment are vacated,
and the case is remanded for resentencing on both counts.

REVERSED IN PART, VACATED IN PART, AND REMANDED

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