In United States v. Boykin, Docket Nos. 14-851-cr & 14-1033-cr, the Court (Walker, Calabresi, Hall) in a per curiam opinion rejected defendant Simmons’s argument that under Allyne v. United States, 133 S. Ct. 2151 (2013), the fact of whether he had a “second or subsequent” conviction under 18 U.S.C. § 924(c) (for using or carrying a firearm during either a crime of violence or a drug trafficking offense), which triggers an enhanced mandatory consecutive sentence of 25 years, must be submitted to and found by a jury. The Court thus re-affirmed United States v. Anglin, 284 F.3d 407 (2d Cir. 2002), which held that the existence of a “second or subsequent” § 924(c) conviction is a mere sentencing factor, falling under the Almendarez-Torres exception (523 U.S. 224 (1998)) to the rule of Apprendi (530 U.S. 466 (2000)), and thus need not be submitted to or found by a jury.
Simmons also argued that his two § 924(c) convictions were multiplicitous. This claim was based on the fact that while one § 924(c) count was based on two RICO counts and the other § 924(c) count was based on a drug trafficking count, the underlying offenses overlapped temporally and the RICO counts included as a predicate act drug-trafficking activity. Op. 12-13. And since the judge did not specifically tell the jury that the § 924(c) counts had to be based on different criminal conduct, it was possible that the jury convicted Simmons on the two § 924(c) counts based on the same underlying criminal conduct.
The Court rejected this argument, finding no plain error (Simmons did not make this argument to the trial court, nor did he ask for an instruction that the two § 924(c) counts had to be based on different conduct). First, the Court stated, “the evidence showed that Simmons possessed . . . multiple firearms on separate occasions.” Second, “in its summation, the Government distinguished between the firearms involved in the respective § 924(c) counts: the § 924(c) charge relating to the racketeering enterprise and conspiracy was based on possession of the firearm discovered on Simmons when he was arrested in January 2008, the firearm he passed along in 2009, and the firearm he possessed while out with a fellow Blood on Lander St; [in contrast,] the § 924(c) count based on possession of a firearm in connection with participation in the narcotics conspiracy was based solely on the ‘block guns’ that were kept on Lander St.” Op. 13-14. Therefore, despite the temporal overlap, “the evidence at trial, and the Government’s presentation of that evidence and argument to the jury, demonstrated that the guns were neither linked ‘to a single crime’ . . . nor based on the ‘continuous possession of a firearm in furtherance of simultaneous predicate offenses consisting of virtually the same conduct.’” Id. 14.
Because “there was an ample basis for the jury to convict Simmons of two separate violations of § 924(c),” it was not plain error for the district court to conclude “at sentencing that the two § 924(c) convictions were based on separate conduct,” and thereafter impose “mandatory minimum, consecutive sentences based on a ‘second or subsequent’ § 924(c) conviction.” Id. 15.