United States v. Vichitvongsa

819 F.3d 260

UNITED STATES of America, Plaintiff–Appellee,

v.Manila VICHITVONGSA, aka Manee Vichitvongsa, Nelly, Defendant–Appellant.

Nos. 14–6013

15–5037.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 28, 2016.

Decided and Filed: April 4, 2016.

ARGUED:Luke A. Evans, Bullock, Fly, Hornsby & Evans, Murfreesboro, Tennessee, for Appellant. Philip H. Wehby, United States Attorney's Office, Nashville, Tennessee, for Appellee. ON BRIEF:Luke A. Evans, Bullock, Fly, Hornsby & Evans, Murfreesboro, Tennessee, for Appellant. Philip H. Wehby, United States Attorney's Office, Nashville, Tennessee, for Appellee.

Before: GRIFFIN and STRANCH, Circuit Judges; and GWIN, District Judge.^*

OPINION

GRIFFIN, Circuit Judge.

This consolidated appeal raises an important issue regarding the application of 18 U.S.C. § 924(c)(1)'s criminalization of the use, carry, or possession of a firearm during the commission of two simultaneous conspiracies. For his role in two separate armed robberies, a jury convicted defendant Manila "Nelly" Vichitvongsa of two counts of conspiring to commit Hobbs Act robbery, two counts of conspiring to traffic drugs, and four counts of using a firearm to further these conspiracies in violation of § 924(c) (two for each robbery). As a matter of statutory interpretation, we hold that the simultaneous violation of two federal conspiracy statutes cannot support two § 924(c) charges on the sole basis of one firearm use. Our conclusion is premised upon our en banc opinion in United States v. Johnson, 25 F.3d 1335 (6th Cir.1994) (en banc), and supported by the decisions of our sister circuits, see United States v. Rentz, 777 F.3d 1105, 1114 (10th Cir.2015) (collecting cases). The district court thus erred in not dismissing one § 924(c) count for each robbery. Accordingly, we vacate two of defendant's § 924(c) convictions, but affirm in all other respects.

I.Case Number 15–5037

Within the span of two weeks in June 2011, defendant Vichitvongsa planned and executed two armed robberies (in LaVergne and Smith County, Tennessee) with several co-conspirators with the hopes of stealing hundreds of thousands of dollars and large amounts of illegal drugs from two drug dealers. Each robbery was violent. They ransacked houses, restrained and beat victims, and shot one man in the chest. Neither robbery accomplished what defendant and his co-conspirators intended; they failed to locate money and drugs, and instead resorted to stealing a few miscellaneous items.

The LaVergne Robbery

On June 11, 2011, defendant met several co-conspirators outside a restaurant in suburban Nashville. There they planned to rob the residence of Chris Leggs, a cocaine dealer. Leggs's residence was in LaVergne, a neighboring suburb. They believed it contained hundreds of thousands of dollars and several kilograms of cocaine. Co-conspirator Nickless Whitson came up with the idea to rob the house, and he and defendant told the others about the amount of money and cocaine they expected to be at the house.

The co-conspirators then drove to the house. Two caused a distraction, while the others forced their way inside. Four carried guns, including defendant. They threatened and assaulted the sole occupant, Dominique Baker, and tied her up while they ransacked the house. After searching for money and drugs for 30 to 45 minutes to no avail, they took a few guns and jewelry, and left.

The Smith County Robbery

About two weeks after the LaVergne robbery, Vichitvongsa and others concocted a plan to rob Daniel Crowe's house, a marijuana dealer in Smith County, Tennessee. William Byrd had purchased marijuana from Crowe to sell on a by-the-pound basis. Byrd, who did not play a role in the LaVergne robbery, told defendant that he was "under the impression that there was a large amount of money" at Crowe's house, "[a]round $300,000." Although Byrd never told defendant there was marijuana at Crowe's house, defendant told others there would be extensive amounts of marijuana there. Defendant indicated he wanted to rob the house, and a few days before the robbery, Byrd escorted Whitson and defendant to the house for reconnaissance purposes.

On June 27, 2011, the robbers met at a Home Depot, purchased zip ties, and caravanned to Crowe's residence. Four, including defendant, entered the house—armed—while two remained outside. They tied up Crowe's mother and stepfather, Lorraine and William Webb, and began searching the house. The robbers threatened to harm the Webbs, with one suggesting they light Lorraine Webb on fire. William Webb eventually freed himself and lunged with a plastic sheath at a robber, who shot him in the chest. Others fired shots as well. The robbers fled shortly thereafter, taking items they found in the house—including guns and grow lamps—in the Webbs's car.

For each robbery, a grand jury charged Vichitvongsa with four counts, for a total of eight: two counts of conspiring to commit Hobbs Act robbery in violation of 18 U.S.C. § 1951 (Counts 1 and 5); two counts of brandishing/discharging a firearm during a conspiracy to commit Hobbs Act robbery in violation of 18 U.S.C. § 924(c)(1) (Counts 2 and 6); two counts of conspiracy with intent to distribute controlled substances in violation of 21 U.S.C. § 846 (Counts 3 and 7); and two counts of brandishing/discharging a firearm while drug trafficking in violation of 18 U.S.C. § 924(c)(1) (Counts 4 and 8). A jury convicted defendant of all eight counts. The district court denied Vichitvongsa's post-verdict motion for acquittal, and sentenced him to a total term of 1,219 months' imprisonment.

Pursuant to 18 U.S.C. § 924(c)(1)(A), (C), and (D), his first § 924(c) offense was subject to an 84–month statutory minimum, and each subsequent offense was subject to a 300–month statutory minimum, each running consecutively. Accordingly, 984 months of his 1,219–month sentence arose from his § 924(c) convictions.

Vichitvongsa raises four issues on appeal in Case No. 15–5037. His primary contention is that § 924(c) does not support four convictions when he only made two choices to use a gun (one for each robbery), and that such convictions violate his constitutional right against double jeopardy. Defendant raises three other issues on appeal: the sufficiency of the evidence supporting an interstate nexus to sustain his Hobbs Act convictions; whether his multiple conspiracy convictions violate double jeopardy; and the reasonableness of his 1,219–month sentence.

II.

First, we address defendant's primary issue on appeal. Section 924(c)(1)(A) provides that "any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm" shall be subject to additional and consecutive imprisonment. Because he simultaneously used only one firearm during the commission of two simultaneous conspiracies (Hobbs Act robbery and drug trafficking), defendant claims he wrongly received two § 924(c) counts for each robbery. We agree with Vichitvongsa that the application of multiple § 924(c) charges under these circumstances is contrary to the law. Accordingly, we need not reach defendant's double jeopardy challenge. See Johnson, 25 F.3d at 1337.

This case presents an issue of first impression in our circuit: whether a defendant can be convicted of violating § 924(c) twice on the sole basis of using the same firearm one time to simultaneously further two different conspiracies. In the double jeopardy context, most of our case law involves either the use of multiple firearms in relation to a single offense, see, e.g., United States v. Taylor, 13 F.3d 986, 992 (6th Cir.1994), or multiple uses of one or more firearms in the context of ongoing criminal activity, see, e.g., United States v. Burnette, 170 F.3d 567, 572 (6th Cir.1999) ; United States v. Nabors, 901 F.2d 1351, 1357–59 (6th Cir.1990). In these cases, we have focused on the nature of the predicate offenses, holding that "924(c)'s unit of prosecution is the underlying offense, not the number of firearms." Taylor, 13 F.3d at 994 ; see also United States v. Graham, 275 F.3d 490, 519–20 (6th Cir.2001) ("We have upheld multiple convictions and sentences under 18 U.S.C. § 924(c)(1) so long as such convictions are based on separate predicate acts."); Nabors, 901 F.2d at 1357–58 ("Nabors's two convictions under § 924(c)(1) do not each require the same proof of facts; the two predicate offenses are distinct and require proof of facts not required by the other predicate. Thus, no problem of multiplicity exists under Blockburger v. United States, [284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ].").

Upon close examination of Vichitvongsa's conduct, this "underlying offense" case law does not control. Instead, this is one of those limited circumstances that is guided by our en banc decision in Johnson, where we examined "[t]he narrow question ... [of] whether a defendant may be sentenced to two or more consecutive terms for violating 18 U.S.C. § 924(c)(1) by possessing firearms while simultaneously trafficking in two or more controlled substances under 21 U.S.C. § 841." 25 F.3d at 1336 (footnote omitted). In Johnson,agents executed a search warrant at Johnson's home and found two firearms and two different controlled substances, cocaine and Dilaudid (hydromorphone). Id. A jury convicted defendant of two § 924(c) charges, one for each type of drug possessed. Id.

As here, we declined to reach the issue of "whether possessing separate controlled substances simultaneously is one predicate offense rather than two" under Blockburger 's multiplicity test and instead addressed the issue on statutory grounds. Id. at 1337. We focused on the "absurdity" presented by Johnson's simultaneous possession of two drugs serving as a predicate for two § 924(c) charges given the statute's ambiguity:

Our [case law] shows that ... hair-splitting [between predicate offenses and § 924(c) charges] sometimes leads to absurd

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