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United States v. Hunter

filed: November 20, 1996.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ALAN KEITH HUNTER, DEFENDANT-APPELLANT. UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, V. BART REED, DEFENDANT-APPELLANT.



Appeals from the United States District Court for the Central District of California. D.C. No. CR-95-00151-JMI. James M. Ideman, District Judge, Presiding.

Before: Melvin Brunetti, Stephen S. Trott and Sidney R. Thomas, Circuit Judges. Opinion by Judge Thomas.

Author: Thomas

THOMAS, Circuit Judge:

OVERVIEW

We consider in this case whether the ten-year sentence enhancement for committing a violent crime with a semiautomatic weapon applies when the weapon is unloaded and inoperable. We find it does and affirm the district court.

FACTS

Defendants Alan Keith Hunter and Bart Reed robbed a credit union on February 15, 1995. Hunter was armed with a .380 caliber, SWD M-12 semiautomatic pistol. Reed was armed with a loaded and operable nine millimeter "Taurus" semiautomatic pistol. After they entered the credit union, Reed went directly to the account services area and pointed his nine millimeter Taurus at employee David Gaunt. Hunter proceeded to the teller window, demanded to see the manager, and jumped over the counter. Hunter and Reed then led the employees to the rear of the credit union where, at gunpoint, they ordered the employees to lie on the floor. Hunter went to manager Barbara Raush's office, pointed his M-12 at her, and ordered her to take him to the vault. Reed and Hunter took $114,540 and fled the credit union. An off-duty deputy sheriff fired several shots at the defendants as they drove away. Hunter and Reed were arrested after pursuit by the police. Upon examination, the police determined the M-12 was unloaded and inoperable because the firing pin was pulled forward and bent.

Reed and Hunter pled guilty to conspiracy in violation of 18 U.S.C. § 371 and armed bank robbery in violation of 18 U.S.C. § 2113. They were also indicted for the use of a semiautomatic assault weapon during a crime of violence in violation of 18 U.S.C. § 924(c). The parties submitted this charge to the district court for determination on the basis of agreed facts. The parties stipulated that although Hunter knowingly used and carried the M-12 firearm and Reed saw him do so, both Hunter and Reed were aware the M-12 was unloaded and inoperable during the robbery. The parties agreed a government expert would have testified the M-12 firearm could be made operational by any one of four different methods and that the M-12 was designed to expel a projectile by the action of an explosive.

At the stipulated facts hearing, Hunter and Reed claimed the ten-year penalty imposed by 18 U.S.C. § 924(c) for semiautomatic weapons should apply only to loaded and operable weapons, and thus they should not receive a ten-year enhanced sentence for use of the M-12 during the robbery. Hunter and Reed characterized their argument as a motion for judgment of acquittal under Rule 29, Fed. R. Crim. P. The district court rejected this argument, holding that the ten-year sentence applied to Hunter and Reed for use of the semiautomatic M-12 even though it was inoperable and unloaded. The district court found Hunter and Reed guilty of violating 18 U.S.C. § 924(c) and sentenced them accordingly.

ANALYSIS

In 1994, Congress amended 18 U.S.C. § 924(c) to add, among other items, an additional ten-year sentence for the use of a semiautomatic weapon during a crime of violence or drug trafficking offense. Hunter and Reed argue that in amending the statute, Congress did not intend to apply the enhanced ten-year penalty for semiautomatic assault weapons to inoperable and unloaded firearms. We reject Hunter and Reed's argument under the plain language of Section 924(c), case law, and legislative history.

Statutory Construction of Section 924(c).

We review the district court's construction and interpretation of a statute de novo. United States v. Bailey, 41 F.3d 413, 416 (9th Cir. 1994), cert. denied, U.S. , 115 S. Ct. 2563, 132 L. Ed. 2d 815 (1995). "We will affirm the denial of a Rule 29 motion unless we determine that no rational trier of fact could find the essential elements of the crime charged beyond a reasonable doubt." United States v. Castaneda, 16 F.3d 1504, 1511 (9th Cir. 1994).

In construing a statute, we assume the legislative purpose is expressed by the ordinary meaning of the words used. American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S. Ct. 1534, 71 L. Ed. 2d 748 (1982). Absent a clearly expressed legislative intention to the ...


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