United States v. Phipps

319 F.3d 177 (2003) United States Court of Appeals for the Fifth Circuit 2003-01-15

criminal; jury convictions of two defendants for kidnaping conspiracy, kidnaping, carjacking and two 924(c)(1) counts (count 3 tied to the kidnaping, count 5 to the carjacking; 84 and 300 months consecutive); direct appeal; the 924(c) issue is multiplicity: whether one use of one gun supports two 924(c)(1) convictions because it served two predicate offenses (result: mixed)

Facts

  1. 3 Active employment of a firearm satisfied conceded
    As Pasquariel-lo pulled into her carport, defendants approached her, Phipps put a gun to her head, Gilley restrained her in the back seat of her car, and they drove away with Phipps at the wheel.
  2. 3 Active employment of a firearm satisfied conceded
    They stopped briefly to give the gun to Medina, then headed for the highway.
  3. 3 Active employment of a firearm satisfied conceded
    During and after the rape, Gilley continuously threatened Pasquariello with a knife as Phipps drove through the night.
  4. 3 Active employment of a firearm satisfied conceded
    Defendants “used” the firearm only once, namely, when Phipps put the firearm to Pasquariello’s head.
  5. 3 Active employment of a firearm satisfied conceded
    From this point forward, we speak only of use, not of carriage or possession, because defendants undoubtedly used the firearm during their crimes.