United States of America, Plaintiff-appellee, v. Orestes Luciano Abreu and James David Thornbrugh,defendants-appellants, 997 F.2d 825 (10th Cir. 1993)

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US Court of Appeals for the Tenth Circuit - 997 F.2d 825 (10th Cir. 1993) July 19, 1993

On Remand from the United States Supreme Court.

Before McKAY, Chief Judge, HOLLOWAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, and KELLY, Circuit Judges.

SEYMOUR, Circuit Judge.


On April 13, 1992, this court held en banc that an enhanced sentence for a second or subsequent conviction under 18 U.S.C. § 924(c) (1) (1988) is only proper when the underlying offense has been committed after a judgment of conviction on a prior section 924(c) offense. See United States v. Abreu, 962 F.2d 1447 (10th Cir. 1992) (en banc).1  On May 17, 1993, the Supreme Court considered the same issue in another case and concluded to the contrary. See Deal v. United States, --- U.S. ----, 113 S. Ct. 1993, 124 L. Ed. 2d 44 (1993). Under the Supreme Court's holding in Deal, a second or subsequent conviction for purposes of section 924(c) can occur when two offenses are charged in the same indictment and the defendant is convicted of both offenses in the same trial.

In anticipation of the Supreme Court's resolution of the issue in Deal, the United States filed a petition for certiorari in July 1992 seeking review of our holding in Abreu. On May 24, 1993, the Supreme Court granted the petition, vacated the judgment, and remanded for further consideration in light of Deal. See United States v. Abreu, --- U.S. ----, 113 S. Ct. 2405, 124 L. Ed. 2d 630 (1993). We have now revisited the issue in light of Deal, and we can ascertain no meaningful basis upon which to distinguish the facts in Deal from the circumstances before us. Accordingly, we hereby withdraw the mandates in our en banc decision and in the separate panel opinions in United States v. Abreu, 962 F.2d 1425 (10th Cir. 1992), and United States v. Thornbrugh, 962 F.2d 1438 (10th Cir. 1992). We vacated the orders that reversed defendants' enhanced sentences and remanded for resentencing in accordance with our en banc decision. We now AFFIRM Abreu's enhanced sentence on Count IV, and we AFFIRM the two enhanced sentences given to Thornbrugh. In all other respects the panel opinions disposing of the remaining issues raised by defendants are unaffected.

AFFIRMED.

 1

In separate panel opinions we considered and rejected the remaining allegations of error raised individually by defendants. See United States v. Abreu, 962 F.2d 1425 (10th Cir. 1992); United States v. Thornbrugh, 962 F.2d 1438 (10th Cir. 1992)