USA v. Brown, Kevin, No. 04-3159 (D.C. Cir. 2006)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on June 2, 2006.
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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Filed September 5, 2006 No. 04-3159 UNITED STATES OF AMERICA, APPELLEE V. KEVIN PATRICK LUKE BROWN, APPELLANT Appeal from the United States District Court for the District of Columbia (No. 03cr00405-01) On Petition for Rehearing Before: RANDOLPH and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge. Opinion PER CURIAM. PER CURIAM: 18 U.S.C. § 924(c)(1)(A)(iii) calls for a 10year sentence where a gun, carried or used in furtherance of certain offenses, is discharged. In our initial opinion in this case we held that the provision creates liability only where the defendant has acted intentionally, e.g., purposely, knowingly or recklessly. United States v. Brown, 449 F.3d 154, 158-59 2 (D.C. Cir. 2006). We observed that there was no evidence that the defendant acted purposely or knowingly, and also said that his conduct with regard to the discharge could not be viewed as reckless. Id. at 159. Accordingly we vacated the sentence and remanded for resentencing under § 924(c)(1)(A)(ii) (providing a 7-year sentence for instances in which the firearm is brandished ). Id. at 159, 160. The government has petitioned for rehearing, arguing that we overlooked the principle that it is for the district court to resolve factual issues relevant to sentencing. We agree to the extent of ordering a remand for the district court in the first instance to apply the standard that we adopted. Cf. United States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994). As we originally noted, of course, the recklessness obviously associated with the defendant s commission of bank robbery, and his carrying and brandishing of the weapon in the course of the robbery, cannot suffice for a finding of the requisite intent to discharge under § 924(c)(1)(A)(iii); otherwise the separate mens rea requirement for the discharge provision would be meaningless or virtually so. Brown, 449 F.3d at 159. The case is remanded for further consideration in light of the original opinion and this order. So ordered.
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