Using a Gun as a Club is "Brandishing" Under 18 USC 924(c)
U.S. v. Bowen, 2008 WL 2232261 (6/2/08) (Published) - Using a firearm as a club constitutes "brandishing" a firearm under 18 U.S.C. ยง 924(c)(1)(A).
First, the 10th made clear the question whether "brandishing" occurred is a sentencing determination to be made by the district court, not a matter for the jury [this is okay under Apprendi, etc., because the determination establishes a mandatory minimum, but does not raise the maximum of life, see Harris v. U.S., 536 U.S. 545 (2002). The 10th noted the defendant did not raise as an error the court's submission of the question to the jury.]. "Brandishing" is a more egregious form of "using" the gun. It requires displaying the gun and an intent to intimidate another. More than "use" of the gun occurred here because the clubbing of the victim included a making known that the gun was present [by hitting the victim with it] and it intimidated the victim to do the culprits' bidding. While the evidence established the clubbing occurred as retaliation, the evidence also showed the clubbing intimidated the victim.
There was sufficient evidence to prove a nexus between the use of the firearm and the underlying crime of retaliation against a witness. There was also sufficient evidence to establish the defendant aided and abetted the use of the gun because he had knowledge of a co-conspirator's use of the gun and knowingly and actively participated in the underlying crime by helping to beat up the victim. The 10th notes its aiding and abetting requirements are different from the vast majority of circuits, who require the intentional facilitation or encouragement of the use of the firearm, not just of the underlying offense. But, foreclosing a chance for en banc or S.Ct. review, the 10th holds that, even under the other circuits' standard, there was sufficient evidence by virtue of the defendant's participation in the beating.
The 10th did remand for the correction of the written judgment, which reflected a 96-month sentence when the d.ct. had orally announced an 84-month sentence. The oral pronouncement prevails over the written judgment.
First, the 10th made clear the question whether "brandishing" occurred is a sentencing determination to be made by the district court, not a matter for the jury [this is okay under Apprendi, etc., because the determination establishes a mandatory minimum, but does not raise the maximum of life, see Harris v. U.S., 536 U.S. 545 (2002). The 10th noted the defendant did not raise as an error the court's submission of the question to the jury.]. "Brandishing" is a more egregious form of "using" the gun. It requires displaying the gun and an intent to intimidate another. More than "use" of the gun occurred here because the clubbing of the victim included a making known that the gun was present [by hitting the victim with it] and it intimidated the victim to do the culprits' bidding. While the evidence established the clubbing occurred as retaliation, the evidence also showed the clubbing intimidated the victim.
There was sufficient evidence to prove a nexus between the use of the firearm and the underlying crime of retaliation against a witness. There was also sufficient evidence to establish the defendant aided and abetted the use of the gun because he had knowledge of a co-conspirator's use of the gun and knowingly and actively participated in the underlying crime by helping to beat up the victim. The 10th notes its aiding and abetting requirements are different from the vast majority of circuits, who require the intentional facilitation or encouragement of the use of the firearm, not just of the underlying offense. But, foreclosing a chance for en banc or S.Ct. review, the 10th holds that, even under the other circuits' standard, there was sufficient evidence by virtue of the defendant's participation in the beating.
The 10th did remand for the correction of the written judgment, which reflected a 96-month sentence when the d.ct. had orally announced an 84-month sentence. The oral pronouncement prevails over the written judgment.
posted by Anonymous at 9:41 AM
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