May 24, 2019

Tenth Circuit: Statutory Language Requires Separate Uses of Weapon During Crime to Support Multiple Charges

The Tenth Circuit Court of Appeals issued its opinion in United States v. Rentz on Tuesday, February 3, 2015.

Philbert Rentz fired one shot that injured one person and killed another. He was charged with two crimes of violence (assault and murder) and two counts of using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). He moved to dismiss the second § 924(c) count and the district court granted the motion. The government appealed the dismissal, and a panel of the Tenth Circuit reversed. Rentz petitioned for en banc rehearing, which was granted.

The Tenth Circuit, in an opinion written by Judge Gorsuch, examined the language of § 924(c)(1)(A). Judge Gorsuch diagrammed the sentence, illustrating that the verbs, “uses, carries, or possesses,” necessarily must modify each crime of violence. Because Rentz only “used” the weapon one time, there could only be one charge under § 924(c)(1)(A).

The Tenth Circuit also noted the vastly increased sentences for second offenses under § 924(c) as support for the argument that the statute was not intended to mandate multiple punishments for the same offense. And, to the extent the statute was ambiguous, the Tenth Circuit resolved the ambiguity in favor of Rentz, noting “the tie goes to the presumptively free citizen and not the prosecutor” as it applied the rule of lenity. The Tenth Circuit opinion did not address the double jeopardy issue, since it found Rentz’s conduct could only support one § 924(c) charge.

The Tenth Circuit opinion also addressed a potential circuit split on the issue based on the Eighth Circuit’s opinion in United States v. Sandstrom, 594 F.3d 634 (8th Cir. 2010). In Sandstrom, the Eighth Circuit, relying on Tenth Circuit precedent, allowed multiple charges under § 924(c) for a single gun use. However, the Tenth Circuit noted that Sandstrom did not directly address what the government must prove for each successive charge under a single statute.

The Tenth Circuit reversed the panel opinion and reinstated the district court’s dismissal of the second § 924(c) charge. Judge Matheson wrote a detailed concurrence regarding units of prosecution and the rule of lenity, and also addressed prior Tenth Circuit precedent leading to the previous panel’s decision. Judge Hartz wrote a second concurrence, and Judge Kelly dissented.

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