United States v. Voris, No. 18-10410 (9th Cir. 2020)
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Defendant was convicted by a jury of six counts of assault on a federal officer with a deadly or dangerous weapon, six counts of discharging a firearm in furtherance of a crime of violence, and one count of possession of a firearm by a convicted felon. Defendant argued that the five assault counts based on four shots he fired toward the door of his motel room are multiplicitous in violation of the Double Jeopardy Clause.
The Ninth Circuit held that defendant failed to show that the district court erred, let alone plainly erred, in entering judgment on the four assault convictions based on the four shots he fired toward the door. However, the panel reversed one assault conviction. Furthermore, because each assault conviction served as a predicate offense for each firearm conviction, the panel also reversed one firearm conviction. The panel rejected defendant's remaining arguments and remanded with instructions.
Court Description: Criminal Law. In a case in which a jury convicted the defendant on six counts of assault on a federal officer with a deadly or dangerous weapon (18 U.S.C. § 111(a)(1) and (b)), six counts of discharging a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)(1)(A)), and one count of possession of a firearm by a convicted felon (18 U.S.C. §§ 922(g)(1), 924(a)(2)), the panel reversed one assault conviction and one § 924(c) conviction, affirmed the district court in all other respects, and remanded. The defendant argued that his sentences and convictions for five assault counts based on four shots he fired toward the door of his motel room are multiplicitous in violation in violation of Double Jeopardy Clause. Applying Ladner v. United States, 358 U.S. 169 (1958), the panel concluded that because the defendant fired four shots, only four assault convictions are constitutionally permissible, even though at least five officers came under fire from those four shots. Because the statutory language construed in Ladner is nearly identical to the language in the current version of § 111, the panel rejected the government’s argument that Ladner is not controlling. The panel held that the defendant met the plain error test for reversal of one assault conviction. The panel rejected the defendant’s argument that because he fired the four shots in quick succession, he committed only one assaultive act and can be convicted of only one assault. UNITED STATES V. VORIS 3 Because each assault conviction served as a predicate offense for each § 924(c) conviction, the panel reversed one § 924(c) conviction. The panel remanded to the district court with instructions to vacate one § 111 conviction and one § 924(c) conviction and resentence the defendant accordingly. The defendant argued that § 924(c)(1)(A) should be interpreted as requiring a separate firearm use to support each § 924(c) conviction, and that he can be convicted of only one § 924(c) count for the shots he fired toward the door because he only used his firearm once (though he fired four shots). The panel observed that under the plain and unambiguous language of the statute, each discharge may be considered a use within the meaning of the statute. The panel therefore concluded that it was appropriate to charge the defendant with four § 924(c) offenses, and affirmance is compelled. The panel held that Section 403 of the First Step Act of 2018—which amended § 924(c)(1)(C) so that a 25-year sentence enhancement no longer applies when all of a defendant’s § 924(c) convictions arise in the same proceeding—does not apply to cases pending on appeal in which the district court sentenced the defendant before the enactment of the First Step Act. The panel expressed no view on whether the First Step Act applies on resentencing. The panel held that the district court did not abuse its discretion in denying the defendant’s motions for a mistrial and new trial based on the admission of an officer’s testimony containing improper character evidence, where the prejudice was minimal. 4 UNITED STATES V. VORIS
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