UNITED STATES v. HURLEY (2021)

United States Court of Appeals, Ninth Circuit.2021-03-11No. No. 19-10064

Summary · law.co

Holding. The court affirmed Hurley's convictions and sentences, finding no plain error in the verdict form, the multiple firearm charges, the consecutive sentencing, or the conditions of supervised release imposed by the district court.

Shaun Hurley was convicted of two counts of firearm use in furtherance of a crime of violence under federal law and received consecutive sentences. On appeal, Hurley challenged the verdict form structure, the charging of multiple firearm counts, the consecutive sentencing, and various conditions imposed on his supervised release. The court found no error in any of these aspects of his conviction and sentence.

Regarding the charges themselves, the court explained that a firearm can be both brandished and discharged during the same criminal episode, so the jury verdict form permitting the jury to find either or both actions occurred was appropriate. The court also determined that Hurley's two separate uses of the firearm—one discharge during an assault and one brandishing during a car theft—constituted distinct violations under federal law, making multiple convictions proper. Because federal law mandates that consecutive sentences be imposed when a defendant is convicted of multiple firearm violations tied to different underlying crimes, the sentencing structure was mandatory rather than discretionary.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a verdict form permitting findings of both brandishing and discharge in a single offense was erroneous
Whether multiple firearm convictions can be brought for separate uses of a gun in connection with different crimes
Whether consecutive sentences for multiple firearm convictions are mandatory
Whether conditions of supervised release were unconstitutionally vague or substantively unreasonable

Procedural posture

Hurley appealed his convictions and sentences for two counts of firearm use in furtherance of a crime of violence, raising challenges to the verdict form, the charging decision, the consecutive sentencing, and conditions of supervised release.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM ***

Shaun Hurley appeals his two convictions and sentences for use of a firearm in furtherance of a crime of violence under 18 U.S.C. § 924(c).

We review the jury verdict form, the charging of multiple § 924(c) offenses, and the imposition of conditions on supervised release for plain error, because Hurley did not object below. See United States v. Espino, 892 F.3d 1048, 1051 (9th Cir. 2018); United States v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007); United States v. Wolf Child, 699 F.3d 1082, 1089 (9th Cir. 2012). We review de novo the district courts imposition of consecutive § 924(c) sentences because it involves a question of law and was objected to below. See United States v. Hoyt, 879 F.2d 505, 511 (9th Cir. 1989), amended, 888 F.2d 1257 (9th Cir. 1989). We affirm.

1. The district court did not commit plain error by using a verdict form that did not require the jurors to choose between “brandishing” or “discharging” the firearm. The “use,” “brandishing,” and “discharge” of a firearm may all occur in the same offense, and the highest mandatory minimum would apply under § 924(c). See, e.g., Abbott v. United States, 562 U.S. 8, 13, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010). Section 924(c)(1)(A) conjunctively lists the “brandish[ing]” and “discharge[ ]” mandatory minimums, confirming that Congress did not intend for the crimes to be mutually exclusive. See 18 U.S.C. § 924(c)(1)(A)(ii)-(iii). Here, the special verdict form required jurors to record whether Hurley “brandished” and/or “discharged” a firearm. The jurors could have picked either, neither, or both. The jury unanimously found that Hurley both brandished and discharged a firearm. There is nothing inconsistent with a jury finding that both occurred in the same offense.

2. The district court did not plainly err by permitting the government to bring two § 924(c) charges. While Hurley argues it was error to allow multiple convictions under § 924(c) for a single use of a firearm, we recently concluded that a defendant who “fired four shots” at Deputy U.S. Marshals “in quick succession” was properly charged with four separate § 924(c) counts. See United States v. Voris, 964 F.3d 864, 870, 873 (9th Cir. 2020) (“Here Voris used his gun four separate times when he fired four shots toward the door—he pulled the trigger four times, in four slightly different directions, resulting in four separate discharges[.]”). We held that each discharge of the firearm constituted a separate “use” under § 924(c), even though the shots were “quickly fired.” Id. at 873. Here, the firearm was first “discharged” near the victims head as he was being assaulted, and second the firearm was “brandish[ed]” at the same victim while Hurley stole the victims car. These two “uses” of the firearm are separate offenses under § 924(c), and Hurleys conviction on two separate counts was not plain error.

3. The district court did not plainly err in imposing consecutive sentences for Hurleys two § 924(c) charges. Section 924(c)(1)(D)(ii) mandates that a § 924(c) sentence run consecutively to any other § 924(c) sentence. See United States v. Zepeda, 792 F.3d 1103, 1116 (9th Cir. 2015) (en banc). As discussed above, Hurley was convicted of two separate § 924(c) violations “tied to ․ different predicate offense[s].” See id. The district court therefore had no discretion to impose Hurleys two § 924(c) sentences concurrently.

4. The district court did not commit plain error by imposing Standard Condition 12, Standard Condition 7, and Special Condition 4. First, Standard Condition 12 is not unconstitutionally vague. This condition mirrors the language used by the Sentencing Commission in U.S.S.G. § 5D1.3(c)(12), and imposing it was not plain error. See United States v. Magdirila, 962 F.3d 1152, 1158–59 (9th 2020) (suggesting district court might cure constitutional deficiency by adopting language similar to that used in U.S.S.G. § 5D1.3(c)(12)).

Second, Standard Condition 7 and Special Condition 4 are not substantively unreasonable. Both conditions are “reasonably related to the goal of deterrence, protection of the public, or rehabilitation of the offender.” United States v. Weber, 451 F.3d 552, 558 (9th Cir. 2006); see 18 U.S.C. § 3583(d). Standard Condition 7 requires Hurley to either “work full time” or “try to find full-time employment.” Hurley does not show that he is incapable of seeking employment, nor does he show that the condition is an unfair burden on a fundamental liberty interest. See United States v. Vega, 545 F.3d 743, 748–49 (9th Cir. 2008). And, finally, Special Condition 4 requires Hurley to participate in substance abuse treatment and contribute to the cost of that treatment as determined by his probation officer. Hurley does not cite any case to support his objection to Special Condition 4, nor does he offer any reason why it would be impossible for him to meet this condition.

AFFIRMED.