                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 13-3801
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                     RAMEL MOTEN,
                                a/k/a SMIZ, a/k/a SMELLY

                                        Ramel Moten,
                                                 Appellant
                                     _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                (D.C. No. 10-cr-00620-01)
                       District Judge: Hon. Lawrence F. Stengel
                                   _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    April 24, 2015

             Before: CHAGARES, JORDAN, and BARRY, Circuit Judges.

                                   (Filed: May 11, 2015)
                                     _______________

                                        OPINION
                                     _______________




       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Ramel Moten appeals his conviction and sentence in the United States District

Court for the Eastern District of Pennsylvania for thirty-one of the eighty-nine counts

contained in a superseding indictment charging him and nineteen other defendants with

various drug, firearm, racketeering, and assault offenses. The charges against Moten

stemmed from his leadership of a large-scale drug trafficking enterprise. We reject the

several grounds of alleged error that he raises, and we will affirm.

I.     Background1

       A.     The Harlem Boys Enterprise

       Moten was a leader of a violent gang known as the “Harlem Boys” or “Young Hit

Men” that sold narcotics for nine years in the Bartram Village Housing Development

(“Bartram Village”) located in Southwest Philadelphia. From about October 2001

through approximately October 6, 2010, the Harlem Boys controlled the illegal drug trade

in Bartram Village, and, for most of that time, Terrance Hamm ran the street-level

operations of the enterprise, which trafficked in crack cocaine, marijuana, and

prescription drugs. Hamm would obtain bulk quantities of drugs from various sources of

supply, prepare the drugs for sale, and distribute them himself and through a network of

street-level drug dealers. He and his co-conspirators used their residences and other



       1
         Because Moten was convicted after a jury trial, “we must defer to the jury’s
verdict and view the evidence in the light most favorable to the government. Therefore,
we recount the government’s [uncontested] version of the facts.” United States v.
Serafini, 233 F.3d 758, 763 n.4 (3d Cir. 2000) (citation omitted).

                                             2
houses or apartments located in or near Bartram Village to store, cook, package, and sell

crack cocaine, and to store drug proceeds, firearms, and ammunition.

       Around April 2007, after several search warrants were executed in Bartram

Village, Hamm stepped back from his involvement in the organization’s criminal

activity. After that, Moten became the leader of the Harlem Boys. Hamm, however, later

resumed his drug trafficking activities and continued to obtain, supply, and sell crack in

and around Bartram Village.

       Even before assuming a leadership role, Moten was a supplier and distributor of

illegal narcotics and a gunman for the enterprise. He committed acts of violence with

other members of the enterprise to protect their turf and frequently provided firearms to

his co-conspirators for use in robberies, assaults, and other crimes. Merrell Hobbs,

Reginald Stephens, Bryan Hill, Warren Stokes, Hikeem Torrence, Omar Roane, Damon

Turner, Allen Parker, Tayale Shelton, Shyheem Davis, and Anthony Freeman, were also

distributors of illegal narcotics and gunmen for the enterprise. Khalil Allen, Andre Tiller,

Kareem Pittman, and Carol Miles were distributors of illegal narcotics. Terrance

Hamm’s brother Charles was a supplier of cocaine to the enterprise and a distributor of

illegal narcotics; he also was responsible for the New Jersey drug sales of the enterprise.

Kareem Pittman, Melika Parker, and Roneisha Scott maintained premises used by the

enterprise to manufacture, package, store, and sell drugs, and to store guns.

       Members of the enterprise committed, attempted, and threatened to commit acts of

violence, including murder, assault, and robbery, to protect and expand the enterprise’s

operations. While some acts of violence occurred prior to April 2007, the violence

                                             3
intensified in the years following Terrance Hamm’s reduced role and Moten’s elevated

role in the gang.

       B.     Procedural History

       The first federal indictment was returned on September 22, 2010. It was revised in

an eighty-nine-count superseding indictment returned on September 7, 2011, naming

twenty defendants, including Moten. Thirteen of the defendants – Roane, Turner,

Shelton, Scott, Freeman, Miles, Tiller, Davis, Pittman, Melika Parker, Allen Parker,

Charles Hamm, and Terrance Hamm – subsequently pled guilty to numerous drug

trafficking, firearms, and violent crime offenses. Additionally, some of those defendants

pled guilty to conspiracy charges under the Racketeering Influenced and Corrupt

Organizations Act (“RICO”). The remaining defendants – Moten, Hobbs, Stephens, Hill,

Stokes, Torrence, and Allen – proceeded to trial after the District Court denied several

pretrial motions. On December 6, 2012, following a ten-week trial, those seven

remaining defendants were convicted of many of the charges in the superseding

indictment. All of the defendants, other than Allen, now appeal their convictions and

sentences.2

       Moten was initially charged in forty of the eighty-nine counts and was ultimately

convicted on thirty-one of those counts. The District Court sentenced him to life

imprisonment, plus a consecutive term of 130 years’ imprisonment, and, as required by


       2
        The several appeals have been consolidated, but because the six appellants raise
many discrete issues, we address each appeal in a separate opinion. For convenience,
however, we set forth the facts relevant to all of the appeals in this decision and will
incorporate them by reference in the other opinions.
                                             4
law, ten years’ supervised release. The sentence also included various fines, assessments,

and orders of forfeiture.

II.    Discussion3

       Moten raises six issues on appeal: (1) whether the District Court erred in denying

his motion for a mistrial, in light of what he says was a variance between charges in the

indictment and the evidence adduced at trial; (2) whether the District Court erred in

allowing a case agent to testify as to the meaning of certain terms used in recorded

conversations; (3) whether one of the prosecutors improperly vouched for the

government’s witnesses; (4) whether the District Court improperly imposed consecutive

enhanced mandatory minimum sentences; (5) whether the District Court erred in refusing

to suppress a firearm obtained during a warrantless search; and (6) whether the District

Court was required to declare a mistrial because of the cumulative effect of the several

alleged errors. We consider each issue in turn.

       A.     Mistrial Due to Variance4

       Moten argues that, for two reasons, there was a variance between the charges in

the indictment and the evidence adduced at trial. First, he says that a number of the overt

       3
         The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
       4
         We review the District Court’s denial of a motion for a mistrial for an abuse of
discretion. United States v. Liburd, 607 F.3d 339, 342 (3d Cir. 2010). We review for
plain error arguments Moten did not raise in the District Court. United States v. Boone,
279 F.3d 163, 174 n.6 (3d Cir. 2002) (“We review for plain error those claims that were
not preserved in the district court... .”).




                                             5
acts described in count 1 were individual vendettas rather than acts in support of the

charged RICO enterprise; and, second, he contends that, if any conspiracy was shown, it

was not a single RICO conspiracy but rather a series of unrelated conspiracies. Neither

claim bears scrutiny.

         A variance occurs “where the charging terms of the indictment are unchanged, but

the evidence at trial proves facts materially different from those alleged in the

indictment.” United States v. Daraio, 445 F.3d 253, 261 (3d Cir. 2006) (internal

quotation marks and brackets omitted). To demonstrate reversible error from a variance,

a defendant “must show (1) that there was a variance between the indictment and the

proof adduced at trial and (2) that the variance prejudiced some substantial right.” United

States v. Balter, 91 F.3d 427, 441 (3d Cir. 1996). “A variance does not prejudice a

defendant’s substantial rights (1) if the indictment sufficiently informs the defendant of

the charges against him so that he may prepare his defense and not be misled or surprised

at trial, [or] (2) if the variance is not such that it will present a danger that the defendant

may be prosecuted a second time for the same offense.” United States v. Schoenhut, 576

F.2d 1010, 1021-22 (3d Cir. 1978). In a RICO case, a variance may occur when the

indictment charges a single conspiracy, but the evidence adduced at trial proves the

existence of multiple conspiracies. United States v. Kemp, 500 F.3d 257, 287 (3d Cir.

2007).

         Moten alleges that, based on evidence at the trial, at least four of the seventy-seven

acts listed in the superseding indictment turned out not to be related to the RICO

conspiracy: the assault on James Coleman, the assault on Alfonso Greer, the gunpoint

                                                6
robbery of Theresa Pitt,5 and the shootings of Darren Jinwright and Kareem Barnes. We

disagree. The District Court correctly concluded that, contrary to Moten’s interpretation

of the evidence, those acts were part of the Harlem Boys’ ongoing campaign of violence

and intimidation to preserve their monopoly over their territory at Bartram Village.

Specifically, the District Court ruled that, even though there may have been additional

personal motivations for the conduct, the charged acts were all committed to demonstrate

the Harlem Boys’ authority and dominance over their territory and thus were in

furtherance of the enterprise. See United States v. Irizarry, 341 F.3d 273, 302-03 (3d Cir.

2003) (murder of man who had burglarized mafia enforcer’s apartment was act in

furtherance of RICO enterprise because it served to “send a message to someone who

would demonstrate such complete disrespect of [mafia enforcer’s] stature in the

enterprise”). Accordingly, there was no variance and declaration of a mistrial was not

warranted.




       5
         It is not clear that Moten objected before the District Court that there was a
variance because the robbery of Pitt was unrelated to the RICO enterprise. Regardless of
the standard of review we apply to that claim of error, however, it fails. Omar Roane, the
gang member who committed the robbery, testified that Pitt was attempting to sell drugs
in Bartram Village. Thus, regardless of what may have additionally motivated the
robbery, it was calculated to further protect the Harlem Boys’ control over their territory.
The government charged and proved the existence of a drug-trafficking enterprise that
protected its turf through violence and threats of violence. The Pitt robbery is therefore
evidence of the RICO conspiracy charged in the indictment. See United States v.
Irizarry, 341 F.3d 273, 300 (3d Cir. 2003) (conduct aimed at maintaining control over
enterprise or enhancing its power or reputation is in furtherance of RICO enterprise).
There is, moreover, evidence that Moten threatened Pitt in an attempt to prevent her from
testifying against Roane.

                                             7
       Moten further argues that, while the indictment charges one ongoing conspiracy,

the evidence adduced at trial demonstrated at most three unrelated conspiracies: an

operation run by Terrance Hamm to sell drugs from 2001 to 2007 in Bartram Village; a

separate operation run by Charles Hamm to sell drugs in Wildwood, New Jersey; and a

separate operation in 2009 and 2010 to sell drugs in Bartram Village. This argument was

not advanced in the District Court. Moten concedes that he was a major player in all

three conspiracies, which also were comprised of members of the Harlem Boys, but, he

says, they were “separate distinct drug operations running parallel, sometimes

overlapping but separate competing ‘entities.’” (Opening Br. at 33.)

       The trial evidence, viewed in favor of the government, proves that wrong. It

demonstrated that there was one ongoing conspiracy to traffic drugs in Bartram Village

and that the co-conspirators engaged in a number of illegal acts to further that enterprise.

The conspiracy operated in multiple cities, with appearances by additional participants,

some of whom were occasionally incarcerated, but that did not transform it into multiple

conspiracies. United States v. DeVarona, 872 F.2d 114, 119 (5th Cir. 1989) (“A single

conspiracy is not transposed into a multiple one simply by lapse of time, change in

membership, or a shifting emphasis in the locale of operation.” (brackets and internal

quotation marks omitted)); see also United States v. Maldonado-Rivera, 922 F.2d 934,

963 (2d Cir. 1990) (“[A] single conspiracy is not transformed into multiple conspiracies

merely by virtue of the fact that it may involve two or more phases or spheres of

operation ... .”). Moten’s argument that the District Court plainly erred by not sua sponte

declaring a mistrial on that basis is without merit.

                                              8
       B.     Admissibility of Case Agent Testimony6

       Next, Moten complains that the District Court allowed the case agent to testify as

to the meaning of various terms on recorded phone conversations that were played for the

jury during trial. For example, Moten objects to the case agent’s describing to the jury

his understanding of the terms “lock and load,” “we low as shit,” “jawn,” “I had to let the

pump off,” “popping fly on you,” “four pounder,” and “rained on him” because these

words or phrases did not require explanation or were not of a coded nature. (Opening Br.

at 36-41.) But, while the slang may be second nature to Moten, its meaning is not self-

evident. Thus, the agent’s testimony was potentially helpful in aiding the jury’s

understanding of what transpired. See Fed. R. Evid. 701 (lay testimony is permitted

where it is “rationally based on the witness’s perception; helpful to clearly understanding

the witness’s testimony or to determining a fact in issue; and not based on scientific,

technical, or other specialized knowledge”). The challenged testimony is of a kind

widely permitted. Cf. United States v. Gibbs, 190 F.3d 188, 211 (3d Cir. 1999) (expert

witness could testify, albeit under Rule 702, as to the meaning of ambiguous or coded

terms such as the fact that “jawn” meant “cocaine,” that to “hit” someone meant to page

them on a beeper, that “on post” meant “ready and waiting,” and that a “quarter” meant

“$2,500”). Furthermore, the agent did not have a “dual role” of fact and expert witness



       6
        We review the District Court’s ruling as to the admissibility of evidence for an
abuse of discretion. United States v. Knight, 700 F.3d 59, 62 (3d Cir. 2012). In the
absence of an objection, we review a Confrontation Clause challenge for plain error.
United States v. Christie, 624 F.3d 558, 569 (3d Cir. 2010).

                                             9
requiring a special instruction and caution to the jury. He testified to facts within his

personal knowledge, and, in any event, Moten requested no such instruction at trial.

       While not entirely clear, it appears that Moten is also advancing a Confrontation

Clause objection. He indicates that there is a Confrontation Clause issue because the case

agent’s testimony contained information that he could have obtained only through

conversations with a non-testifying confidential informant. For example, Moten contends

that the agent’s testimony that Moten got rid of a bulletproof vest had to be based on off-

the-record conversations with an informant because there is “no evidence of record that

Moten said that in a recorded conversation.” (Opening Br. at 41.) But, that is incorrect.

There is a recorded conversation between Moten and a confidential informant in which

Moten states that he got rid of the bulletproof vest – Moten cites to it in his opening brief,

attaches it as an exhibit, and then further cites to the trial transcript that describes the

playing of the recording to the jury. Further, because the statement about the bulletproof

vest is Moten’s own statement, there is plainly no Confrontation Clause problem. See

Davis v. Washington, 547 U.S. 813, 823 (2006) (holding that the Confrontation Clause

applies only to testimonial hearsay); Fed. R. Evid. 801(d)(2) (statement made by a

defendant that is offered against him at trial is not hearsay).

       As another example, Moten says that, after the prosecutor played a recorded

conversation with the confidential informant in which the informant referenced a woman

named “Jewel,” the agent testified that “Jewel” was the informant’s girlfriend. (App. at

3772.) Moten argues that there were two “Jewels” and that the agent somehow knew

“the difference between the two Jewels; one being [the confidential informant’s]

                                               10
girlfriend as opposed to Jewel a/k/a Celestine Leavingston.” (Opening Br. at 40.)

According to Moten, the agent could only have understood that difference because of an

off-the-record conversation with the confidential informant. Even if that were true,

however, the testimony does not pose a Confrontation Clause problem because it was not

offered for the truth of the matter asserted. See Crawford v. Washington, 541 U.S. 36, 59

n.9 (2004) (“The [Confrontation] Clause also does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter asserted.”); accord

United States v. Brown, 560 F.3d 754, 764 (8th Cir. 2009) (admission of statement

regarding the street nickname of victim’s attacker did not violate the Confrontation

Clause where it was “offered to explain why an officer conducted an investigation in a

certain way”).

       Likewise, Moten complains about the agent’s testimony as to other background

information regarding the investigation, such as what prompted the agent to seek out a

search warrant for the residence of Markita Vareen, a woman alleged to be storing

weapons for the Harlem Boys, and what the agent did to obtain Moten’s telephone

number. Again, however, those statements were not offered for their truth; instead, they

were offered to provide context to the investigation and explain the agent’s actions and

thus do not amount to Confrontation Clause violations. See United States v. Gibbs, 506

F.3d 479, 486 (6th Cir. 2007) (testimony regarding tip that defendant may have had a gun

did not violate the Confrontation Clause because it was “offered simply as background

evidence” to explain the officers’ actions).



                                               11
       C.     Vouching7

       Moten also argues that, through a number of statements made primarily during

closing arguments, the prosecutor vouched for the credibility of government witnesses at

trial. First, the prosecutor referenced the co-conspirators who pled guilty and testified at

trial, arguing that their guilty pleas rendered their testimony credible because they

accepted responsibility for their actions. Second, the prosecutor stated during closing

arguments that he was present at a proffer session when a government witness received a

text message from Moten, thereby, according to Moten, bolstering that witness’s

credibility. Third, the prosecutor explained that Moten was not charged with a

substantive count of carjacking – even though evidence of his involvement in the

carjacking was presented at trial – because the statute of limitations barred Moten’s

prosecution for that offense. According to Moten, in so doing, the prosecutor was “trying

to put on the white hat for the jury to show that [the government] played by the rules and

followed the law.” (Opening Br. at 45.) Finally, Moten argues, the prosecutor vouched

for the government by referring to it as “we.” (Id. at 45.) Moten also complains that

during rebuttal, the government continued to vouch for the credibility of its own

witnesses; promoted itself as having prosecuted the case in an ethical and professional

manner; and refuted the defendants’ attacks on the credibility of its witnesses by



       7
         We review for abuse of discretion the District Court’s ruling as to the propriety
of prosecutorial statements at trial. United States v. Brennan, 326 F.3d 176, 182 (3d Cir.
2003). Here again, in the absence of a contemporaneous objection, our review is for
plain error. United States v. Berrios, 676 F.3d 118, 133 (3d Cir. 2012).

                                             12
explaining that the witnesses did not have access to the case agent’s file before they

testified.

       While some of the statements Moten complains of were made in response to

credibility attacks from defense counsel, see United States v. Weatherly, 525 F.3d 265,

273 (3d Cir. 2008) (“[T]his [improper vouching] comment was made in rebuttal, in

response to speculation and an attack by the defense attorney on the credibility of the

government witnesses. As such, it is likely that the jury simply viewed this statement as

a response to the defendant’s accusations.”), other comments, such as the prosecutor’s

statement that he was present during the proffer session when the witness received text

messages from Moten, are less defensible; it is hard to think of a good reason for a

prosecutor to highlight his personal involvement in an investigation. Nonetheless, the

government presented such a tremendous volume of credible evidence that we are left

with a sure conviction that any error resulting from the prosecutor’s statements was

entirely harmless. See id. (improper vouching for witness credibility is reviewed for

harmless error); United States v. Gallagher, 576 F.2d 1028, 1042 (3d Cir. 1978) (“[I]n

view of the amplitude of the evidence proving the appellants’ guilt, we cannot say that

the unfortunate statements quoted above alone require reversal.”). The government

presented weeks of testimony from co-conspirators and victims, detailing the Harlem

Boys’ extensive illegal – and frequently violent – activities in support of their ongoing

large-scale drug trafficking enterprise. It was the overwhelming evidence presented, not

the stray comments of the prosecutor – even those we find concerning – that led to the

verdict. United States v. Vitillo, 490 F.3d 314, 328-29 (3d Cir. 2007), as amended

                                             13
(Aug. 10, 2007) (“[I]t was certainly ill-advised for the prosecutors to mention their

presence at the FBI raid and interview. We hope the United States Attorney for the

Eastern District of Pennsylvania will instruct his assistants accordingly. ... Ultimately,

however, a new trial is not required here in light of the strong evidence of [the

defendant’s] guilt.”).

       D.     Suppression of Evidence8

       Moten argues that the District Court erred in denying his motion to suppress a

handgun found during a warrantless search executed at co-conspirator Pittman’s

residence.

       On October 7, 2009, police responded to a radio call of a “male with a gun” who

entered an apartment building on Harley Terrace in Bartram Village. (App. at 3260.)

While searching for the gunman, police detected the smell of marijuana emanating from

Apartment 3A. They knocked on the door and were eventually granted entry by a

resident of the apartment. Tyreek Artis, who matched the description of the gunman,

emerged from a back room and was immediately arrested. As Artis was being arrested, a

police officer conducted a protective sweep of the apartment and noticed a .38 caliber

Colt revolver in a shoe box in plain view. After obtaining consent to search the

apartment, the police also found marijuana and crack cocaine in a closet in the living

room. Later, the government recorded a telephone conversation between Moten and a


       8
         We review the District Court’s denial of a motion to suppress for clear error as to
the underlying factual findings and exercise plenary review of the District Court’s
application of the law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir.
2002).
                                             14
confidential informant, in which Moten identified the revolver and the drugs as “ours.”

United States v. Moten, No. CRIM.A. 10-620-01, 2012 WL 2873368, at *3 (E.D. Pa.

July 13, 2012). Before trial, Moten unsuccessfully sought to suppress the Colt revolver.

Id. The District Court ruled that the search was reasonable and, in any event, that Moten

lacked standing to challenge it.

       A warrantless search of a residence is generally forbidden by the Fourth

Amendment. See Maryland v. Buie, 494 U.S. 325, 331 (1990) (“[A] search of the

house … is generally not reasonable without a warrant issued on probable cause.”). In

Buie, however, the Supreme Court articulated an exception for a brief search of a

residence in connection with an arrest if the search is limited in time and scope and is

intended only to ensure officer safety. Id. at 334; accord United States v. White, 748 F.3d

507, 511 (3d Cir. 2014). Here, it is clear that the search fits perfectly within that

exception. The police officers took a quick look into the room from which the gunman

had emerged moments earlier. The District Court determined that they did so to see if

there were any other individuals present in the room that may have posed a threat. That

search is the type authorized by Buie – indeed the facts here are almost identical to those

presented there. Accordingly, the District Court did not err in refusing to suppress the

evidence and we need not address whether Moten had standing to challenge the search.

United States v. Kennedy, 638 F.3d 159, 163 (3d Cir. 2011) (“[S]tanding to challenge a

search is not a threshold issue that must be decided before reaching the question of

whether a search was or was not constitutional.”).



                                              15
       E.       Mistrial Due to Cumulative Harm9

       Moten further contends that the cumulative effect of all of the alleged errors at

trial warranted a mistrial. A new trial is required on the basis of cumulative errors only

when “the errors, when combined, so infected the jury’s deliberations that they had a

substantial influence on the outcome of the trial.” United States v. Thornton, 1 F.3d 149,

156 (3d Cir. 1993) (internal quotation marks and brackets omitted). At most, only

Moten’s claim based on certain statements of the prosecutor has even arguable merit, and

we have concluded that any error in that regard was harmless. We remain confident that,

to the extent there was error, it did not have a substantial influence on the outcome of trial

or render it fundamentally unfair. United States v. Rivera, 900 F.2d 1462, 1477 (10th

Cir. 1990) (cumulative effect must render trial fundamentally unfair).

       F.       Sentencing Error10

       Finally, Moten argues that the District Court erred when it imposed consecutive

mandatory sentences under 18 U.S.C. § 924(c).11 Moten was convicted of six violations


       9
         As we have noted, we review a District Court’s denial of a motion for a mistrial
for an abuse of discretion. Liburd, 607 F.3d at 342.
       10
          We exercise plenary review over the District Court’s imposition of consecutive
mandatory sentences under 18 U.S.C. § 924(c). United States v. Diaz, 592 F.3d 467, 470
(3d Cir. 2010).
       11
            Section 924(c) provides, in relevant part:

       [A]ny person who, during and in relation to any crime of violence or drug
       trafficking crime … 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 of violence or drug trafficking crime … be
       sentenced to a term of imprisonment of not less than 5 years … .
                                               16
of section 924(c), the first of which carried a five-year mandatory minimum sentence,

consecutive to other charges. The District Court imposed consecutive sentences of 25

years for each of Moten’s five other section 924(c) convictions, resulting in a total of 130

years’ imprisonment, on top of his life sentence.

       As Moten recognizes, controlling precedent forecloses his argument that the

imposition of consecutive mandatory sentences was error. In Deal v. United States, 508

U.S. 129, 130 (1993), the Supreme Court held that, where the defendant was found guilty

in a single criminal proceeding of six counts for using a firearm in connection with a

crime of violence, his convictions on the second through sixth counts constituted “second

or subsequent convictions” for the purpose of enhancing the statutory term of

imprisonment under section 924(c). In accordance with the Supreme Court’s decision in

Deal, we have similarly held that consecutive sentences are permitted, regardless of

whether the section 924(c) convictions arise out of the same criminal episode or act,

United States v. Casiano, 113 F.3d 420, 426 (3d Cir. 1997), or whether they are charged

in a single indictment, United States v. Coates, 178 F.3d 681, 683 & n.2 (3d Cir. 1999).

Moten does not contend that the rule from those decisions is inapplicable but instead asks

us to revisit the holding in Deal, echoing the concerns of the dissent in that case. As we

have noted, however, we are “bound by the Supreme Court’s interpretation of § 924(c)(1)


       ...
       In the case of a second or subsequent conviction under this subsection, the
       person shall be sentenced to a term of imprisonment of not less than 25
       years ... .

18 U.S.C. § 924(c)(1)(A), (C).
                                             17
in Deal … . It is for Congress to ameliorate the result of application of the statute

according to its terms, if it deems it too harsh.” Casiano, 113 F.3d at 426. Thus, as with

Moten’s other claims of error, this one must fail.

III.     Conclusion

         For the foregoing reasons, we will affirm the judgment and sentence of the District

Court.




                                             18
