USA v. Travis Houston


PUBLISHED OPINION FILED. [09-50347 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 11/29/2010 for Appellant Travis Lee Houston [09-50347]

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USA v. Travis Houston se: 09-50347 Ca Document: 00511287481 Page: 1 Date Filed: 11/08/2010 Doc. 0 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-50347 S u m m a r y Calendar November 8, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , versu s T R A V I S LEE HOUSTON, D e fe n d a n t -A p p e lla n t . A p p e a l from the United States District Court fo r the Western District of Texas N o . 5:07-CR-745-1 B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. J E R R Y E. SMITH, Circuit Judge: T r a v is Houston appeals his seven-year sentence imposed for brandishing a firearm during and in relation to a crime of violence pursuant to 18 U.S.C. 924(c)(1)(A)(ii) (2006). He argues that, because he was subject to a 25-year m a n d a t o r y minimum sentence under 924(c)(1)(C)(i), the district court should Case: 09-50347 Document: 00511287481 Page: 2 Date Filed: 11/08/2010 No. 09-50347 n o t have imposed an additional consecutive seven-year sentence pursuant to 924(c)(1)(A)(ii). Because Houston's seven-year and 25-year sentences were for s e p a r a t e crimes, we affirm. I. W h ile Michael Floyd, a truck driver for Grocery Supply Co. ("GSC"), was s t o p p e d at a red light in San Antonio, Texas, Houston ran up to the truck's wind o w brandishing a handgun and demanded to be let in. Houston then moved F lo y d over to the passenger seat and drove toward Austin, Texas. T w o hours later, in Austin, Houston spotted another GSC truck off the fr e e w a y making its delivery at a convenience store. Houston said, "There's my t r u c k ," exited the freeway, parked near the convenience store, and waited for the o t h e r truck to finish its delivery. As David Cruz, Jr., along with his co-worker M ic h a e l Bilicek, drove their truck from the store, Houston positioned his truck t o block the road. As Cruz's truck approached, Houston exited his vehicle and r a n toward Cruz's truck with his gun in hand while shouting at Cruz to stop. As Cruz tried to drive around the truck Houston had left blocking the road, H o u s t o n jumped onto the steps to the passenger side door of Cruz's truck and h e ld on to the truck. Cruz sped up and swerved the truck back and forth, and B ilic e k repeatedly kicked the passenger side window, but Houston hung on to t h e vehicle. Houston then fired his gun into the cab, shattering the passenger s id e window and spraying glass shards onto Cruz and Bilicek. Cruz steered the t r u c k toward a ditch and jumped out, breaking his leg. Houston also jumped off, b e fo r e the truck, with Bilicek inside it, crashed into an occupied car and fell into t h e ditch. F r a n c is c o Aleman was washing his cement truck nearby when he heard t h e gunshot and the crash, and he ran over to the crash site. He saw Houston r u n n in g toward him and asked whether he needed any help, at which point Hou2 Case: 09-50347 Document: 00511287481 Page: 3 Date Filed: 11/08/2010 No. 09-50347 s t o n pulled out his gun, pointed it at Aleman, told him to "back up," pushed him u p to the cement truck, and asked for Aleman's key to the truck. The engine of a n o t h e r cement truck was already running, however, so Houston took that truck a n d drove off. Using the truck's GPS system, police apprehended Houston shortly thereafter. II. H o u s t o n was convicted of possession of a firearm by a convicted felon, t h r e e counts of taking a motor vehicle by force, and two counts of obstructing in t e r s t a t e commerce by robbery, for which he received sentences ranging from 1 2 0 to 240 months of imprisonment, to run concurrently. In addition, he was c o n v ic t e d of two counts of brandishing a firearm during and in relation to a c r im e of violence pursuant to 18 U.S.C. 924(c). He was sentenced to seven y e a r s of imprisonment on the first 924(c) count and 25 years on the second, b o th sentences to run consecutively to all other counts. He appeals the imposit io n of the seven-year consecutive sentence.1 III. S e c t io n 924(c)(1) says, in pertinent part, (A)(i) Except to the extent that a greater minimum sentence is othe r w is e provided by this subsection or by any other provision of law, a n y person who, during and in relation to any crime of violence or d r u g trafficking crime . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in fu r t h e r a n c e of any such crime, possesses a firearm, shall, in addit io n to the punishment provided for such crime of violence or drug t r a ffic k in g crimeSS Although Houston also argues that his conviction for felony firearm possession pursuant to 18 U.S.C. 922(g)(1) (2006) violates the Interstate Commerce Clause, he concedes that that argument is foreclosed by United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996). 1 3 Case: 09-50347 Document: 00511287481 Page: 4 Date Filed: 11/08/2010 No. 09-50347 . . . (ii) if the firearm is brandished, be sentenced to a term of imp r is o n m e n t of not less than 7 years; .... (C) In the case of a second or subsequent conviction under this s u b s e c t io n , the person shallSS (i) be sentenced to a term of imprisonment of not less than 25 years . . . . 1 8 U.S.C. 924(c)(1) (emphasis added). Houston contends that the district court e r r e d in imposing both a seven-year consecutive sentence for the first count of b r a n d is h in g a firearm and a 25-year consecutive sentence for the second count, b ec a u s e 924(c)(1)(A) prohibits imposing the seven-year 924(c) sentence "to the e x t e n t that a greater minimum sentence is otherwise provided by [ 924(c)]." We m u s t therefore decide whether a greater minimum sentence for a second or s u b s e q u e n t 924(c) offense qualifies as a "greater minimum sentence . . . o t h e r w is e provided by [ 924(c)]." 2 T h e language of a statute, like all language, "cannot be interpreted apart fr o m context." Smith v. United States, 508 U.S. 223, 229 (1993). The so-called " e x c e p t " clause of 924(c)(1)(A)(i) "does not say `a greater minimum sentence' for w h a t; yet it has to have some understood referent to be intelligible." United S ta te s v. Parker, 549 F.3d 5, 11 (1st Cir. 2008). One such referent is that the c la u s e applies only to sentences concerning firearm possession.3 The question The parties agreed that Houston's appeal of his seven-year 924(c) sentence was foreclosed by United States v. London, 568 F.3d 553, 564 (5th Cir. 2009), and the government moved for summary affirmance. We denied summary affirmance, however, because London does not address the issue we face. London, 569 F.3d at 564 (adopting reasoning and holding of United States v. Collins, 205 F. App'x 196 (5th Cir. 2006)). The Supreme Court granted certiorari to resolve a circuit split on that issue. United States v. Gould, 329 F. App'x 569 (5th Cir. 2009), cert. granted, 130 S. Ct. 1283 (2010) (No. 09-7073); United States v. Abbott, 574 F.3d 203 (3d Cir. 2009), cert. (continued...) 3 2 4 Case: 09-50347 Document: 00511287481 Page: 5 Date Filed: 11/08/2010 No. 09-50347 is whether the "except" clause also covers a "greater minimum sentence" for poss e s s io n of the same firearm during a subsequent crime committed later in the s a m e day. T h e issue is one of first impression, but the Second Circuit has come close t o addressing it directly. In United States v. Williams, 558 F.3d 166, 171-72 (2d C ir . 2009) (dictum), it observed (and in United States v. Parker, 577 F.3d 143, 1 4 7 (2d Cir. 2009), it held) that the so-called "except" clause of 924(c)(1)(A) app lie s only to conduct arising from the same criminal transaction or set of ope r a t iv e facts as the crime yielding the greater mandatory minimum sentence. Thus, in Parker, the mandatory minimum sentence arising from possession of c r a c k cocaine between April 30 and May 1 did not preclude an additional consecu tiv e sentence for conduct arising from possession of crack cocaine on July 19, b e c a u s e those were different transactions. Parker, 577 F.3d at 147. I n support of its holding, the Second Circuit relied on 924(c)(1)(A)(i)'s r e fe r e n c e to the use or carrying of a firearm "during and in relation to," or poss e s s io n "in furtherance of," a crime of violence or drug trafficking offense. Id.; W illia m s , 558 F.3d at 171. The problem with that reasoning, however, is that t h e phrases "same transaction" and "set of operative facts" are procedural terms o f art that mean neither "during" nor "in furtherance of" a crime of violence or d r u g trafficking offense.4 (...continued) granted, 130 S. Ct. 1284 (2010) (No. 09-479). See, e.g., Moore v. N.Y. Cotton Exch., 270 U.S. 593, 610 (1926) ("`[T]ransaction' is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship."); United Mine Workers v. Gibbs, 383 U.S. 715, 724-25 (1966) (holding federal jurisdiction over pendent state law claims exists only if federal and state claims have the same "nucleus of operative fact" and is not limited to those cases in which state law claims are "little more than the equivalent of different epithets to characterize the same group of circumstances" (internal quotation marks and citation omitted)); McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298, 304 (5th Cir. (continued...) 4 3 5 Case: 09-50347 Document: 00511287481 Page: 6 Date Filed: 11/08/2010 No. 09-50347 F o r example, if a defendant robbed a bank and then stole a vehicle cont a in in g an unregistered firearm, a charge for possession of an unregistered firea r m could form part of the same "transaction" as the bank robbery charge, even if the firearm was not carried "during" or possessed "in furtherance of" the robb e r y .5 In short, there is a logical gap between the Second Circuit's test and the s t a t u t o r y language it relies on. Although the statute is admittedly "not a model o f clarity," Collins, 205 F. App'x at 198, that does not sanction importing a doct r in e found nowhere in the statute, let alone one as vague as the "same transact io n " test. There is a more faithful interpretation of the statute. Section 924(c)(1 )(A )(i) imposes a mandatory minimum sentence for using or carrying a firearm " d u r in g and in relation" to a crime of violence or drug trafficking crime or for possessing a firearm "in furtherance of" such a crime, unless 924(c) or another p r o v is io n of law imposes a greater mandatory minimum sentence. Just as we t h o u g h t in Collins that the statute's "greater mandatory minimum sentence" e x c e p t io n most reasonably refers only to another, greater sentence for firearm p o s s e s s io n , id., so too does it most reasonably refer only to a greater mandatory m in im u m sentence for that specific crime of firearm possession.6 I n addition to being the most natural reading of 924(c)(1)(A)(i), that int e r p r e t a t io n avoids the odd result produced by the Second Circuit's reading, (...continued) 1993) (holding defendant's contractual indemnity claim for attorneys' fees against third party arose out of same "aggregate of operative facts" as did plaintiff's negligence claim against defendant (internal quotation marks and citation omitted)). See United States v. Park, 531 F.2d 754, 761 (5th Cir. 1976) (discussing United States v. Pietras, 501 F.2d 182, 185 (8th Cir. 1974)). See United States v. Easter, 553 F.3d 519, 526 (7th Cir. 2009) ("[T]he most natural reading of the `except' clause is that a defendant convicted under 924(c)(1) shall be sentenced to a term of imprisonment set forth in 924(c)(1)(A) unless [another statutory provision] requires a higher minimum sentence for that 924(c)(1) offense."). 6 5 4 6 Case: 09-50347 Document: 00511287481 Page: 7 Date Filed: 11/08/2010 No. 09-50347 w h e r e b y a second conviction under 924(c)(1)(C) precludes any imprisonment fo r the first conviction if the two crimes occurred in close proximity. "A determ in a t io n of guilt that yields no sentence is not a judgment of conviction at all." Easter, 553 F.3d at 526. The Second Circuit's interpretation would thus be prope r only if 924(c)(1)(A)(i) were only a sentencing enhancement provision. But it is not an enhancement provision; it defines a standalone crime.7 F in a lly , the reasoning we adopt meets the goals identified by the Second C ir c u it . We avoid making the length of a sentence turn on whether prosecutors c h a r g e d the defendant in separate prosecutions instead of in a multi-count ind ic t m e n t .8 Moreover, we avoid giving a defendant a lighter sentence just bec a u s e he was "already sentenced for a prior unrelated crime in a previous case." Williams, 558 F.3d at 172. I n sum, 924(c)(1)(A)(i)'s reference to a "greater mandatory minimum sent e n c e " refers only to a greater mandatory minimum for that specific offense. Therefore, the district court did not err in sentencing Houston to consecutive t e r m s of seven years for his first firearm offense and 25 years for his second. A F F IR M E D . See Dean v. United States, 129 S. Ct. 1849, 1853 (2009) ("The principal paragraph [of 924(c)] defines a complete offense . . . ."). See Deal v. United States, 508 U.S. 129, 133-34 (1993) (interpreting statute in part to avoid "such strange consequences"); Williams, 558 F.3d at 172 n.4. 8 7 7

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