United States Court of Appeals for the Fifth Circuit · 2003-01-15
Case and law context
Role: applied; posture: 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; claim: (c)(1)
Instances and excluded annotation blocks
| Case | Element | Holding and scope | Variant | Exact source quotations |
|---|---|---|---|---|
| /f3d/319/0177-01 — United States Court of Appeals for the Fifth Circuit · 2003 | During and in relation to the predicate | satisfied Excluded from merits counts applied / lower-court basis: proved; claim: (c)(1); party: Phipps and Gilley; count: counts 3 and 5; subject: party=Phipps and Gilley; count=counts 3 and 5 The jury found the nexus for both predicates and nobody challenged it; the court's own description (the gun to the head is what produced both the car and the abduction) is quoted, but the nexus itself is not reviewed. | weapon-compels-victim/gunpoint-abduction-and-vehicle-taking | True enough, this single use allowed defendants to commit two crimes.Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [18365:18434] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545.They could have committed either offense without committing the other: They could have taken Pasquariello’s car without abducting her, or vice versa.Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [18534:18683] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545.§ 924(c)(1) criminalizes the use of a firearm during and in relation to the predicate offense, not in regard to a defendant’s purposes in using the firearmSource: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [18846:19001] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545. |
| /f3d/319/0177-01 — United States Court of Appeals for the Fifth Circuit · 2003 | Firearm object | not_reached Excluded from merits counts applied / merits claim: (c)(1) Not contested; the accomplice Medina's testimony was the only evidence besides the victim's that a firearm was used (mentioned only in the obstruction-enhancement discussion). | Unspecified variant | No source quotation recorded for this block. |
| /f3d/319/0177-01 — United States Court of Appeals for the Fifth Circuit · 2003 | Felony with the required force element | satisfied Counted merits instance applied / merits basis: conceded; claim: (c)(1); party: Phipps and Gilley; count: kidnaping (18 U.S.C. 1201(a)(1)) and carjacking (18 U.S.C. 2119(2)); subject: party=Phipps and Gilley; count=kidnaping (18 U.S.C. 1201(a)(1)) and carjacking (18 U.S.C. 2119(2)) One sentence, uncontested, no elements-clause or residual-clause analysis; the defendants challenged only the number of 924(c)(1) convictions, never the status of the predicates, so the basis is [conceded], not a reasoned ruling of law. CAVEAT: thin and dated authority. A single unreasoned sentence from January 2003, long before Davis and Taylor, citing 924(c)(3) as a whole without choosing between the elements clause and the residual clause; federal kidnaping in particular rested largely on the residual clause later held void. Do not rely on this block as authority that kidnaping or carjacking qualifies as a crime of violence. | asserted-without-analysis/kidnaping-and-carjacking | The jury convicted defendants on all five counts.Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [2694:2743] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545.Kidnaping and carjacking are crimes of violence. 18 U.S.C. § 924(c)(3).Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [8873:8944] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545. |
| /f3d/319/0177-01 — United States Court of Appeals for the Fifth Circuit · 2003 | Active employment of a firearm | satisfied Counted merits instance applied / merits basis: conceded; claim: (c)(1); party: Phipps and Gilley; count: the single use underlying counts 3 and 5; subject: party=Phipps and Gilley; count=the single use underlying counts 3 and 5 That the gun was actively employed (put to the victim's head) is undisputed; what the court decides is the NUMBER of uses: one. The cuts-against lines are the facts that ended the use (gun handed to the accomplice at once; later threats were with a knife), i.e. they cut against any second or continuing use, not against the first. | active/weapon | 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.Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [624:819] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545.They stopped briefly to give the gun to Medina, then headed for the highway.Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [820:896] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545.During and after the rape, Gilley continuously threatened Pasquariello with a knife as Phipps drove through the night.Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [1003:1121] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545.From this point forward, we speak only of use, not of carriage or possession, because defendants undoubtedly used the firearm during their crimes.Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [43542:43688] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545.Defendants “used” the firearm only once, namely, when Phipps put the firearm to Pasquariello’s head.Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [18264:18364] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545. |
| /f3d/319/0177-01 — United States Court of Appeals for the Fifth Circuit · 2003 | Active employment of a firearm | not_reached Excluded from merits counts applied / procedural claim: (c)(1); party: Phipps and Gilley; count: the second 924(c)(1) count (count 3 or count 5, at the government's election); theory: unit of prosecution / multiplicity: single use of a single firearm during two predicate offenses; rule of lenity; subject: party=Phipps and Gilley; count=the second 924(c)(1) count (count 3 or count 5, at the government's election); theory=unit of prosecution / multiplicity: single use of a single firearm during two predicate offenses; rule of lenity NOT a ruling on the `use` element (use is satisfied once: see the block above). The real ruling is UNIT OF PROSECUTION / MULTIPLICITY, an offense-level question of statutory construction decided under the rule of lenity: the unit of prosecution is the use (carriage, possession) of the firearm, so 924(c)(1) does not authorize two convictions for a single use of a single firearm that served two predicate offenses. The fact polarities are relative to that multiplicity question (toward / against a second conviction), not to whether the gun was used. Consequence: one use yields one 924(c)(1) conviction even when it furthers two distinct crimes of violence, so one of the two counts must be dismissed and all sentences redone. Expressly limited to the facts: had the defendants kept the gun and used it again, or had there been several guns, two convictions might stand. The constitutional (double jeopardy) version of the argument is rejected under circuit precedent because kidnaping and carjacking have different elements. | unit-of-prosecution/single-use-single-gun-two-predicates | In what surely must be a rare event, defendants used a single firearm a single time for a dual criminal purpose, then immediately discarded it.Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [24929:25072] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545.By brandishing the firearm, they forced Pasquariel-lo to surrender her car, and they abducted her.Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [18435:18533] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545.We conclude that the unit of prosecution is the use, carriage, or possession of a firearm during and in relation to a predicate offense.Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [12525:12661] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545.Given the unit of prosecution, this language allows for only as many counts as there are uses of the firearm.Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [18154:18263] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545.In light of this extraordinary fact, § 924(c)(1) does not unambiguously authorize multiple convictions for a single use of a single firearm based on multiple predicate offenses.Source: docroot/ir/caselaw/f3d_319.jsonl#/f3d/319/0177-01; Unicode character offsets [25073:25250] (end exclusive); SHA-256 410aaa82568aa70a38c1453cbb5b2af50d068e8cb1e58133e8a057f9487ef545. |