Whether a defendant can be convicted of violating 18 USC § 924(c) twice on the sole basis of using the same firearm one time to simultaneously further two different conspiracies; United States v. Johnson; Applicability of “underlying offense” case law analysis; United States v. Taylor; United States v. Burnette; United States v. Nabors; United States v. Graham; One § 924(c) charge for one “use”; United States v. Rentz (10th Cir.); United States v. Phipps (5th Cir.); Hobbs Act convictions; United States v. Turner; United States v. Stewart; United States v. Ostrander; Jackson v. Virginia; United States v. Cecil; United States v. Baugh (Unpub. 6th Cir.); United States v. Lanier (Unpub. 6th Cir.); “Double jeopardy” & claims of “multiplicity”; U.S. Const. amend. V; United States v. Swafford; United States v. Sinito; United States v. Goff (Unpub. 6th Cir.); Whether the defendant’s sentence was “substantively unreasonable”; Sufficient evidence that the defendant was a felon possessing a firearm; United States v. Walker; United States v. Campbell; United States v. Garcia; United States v. Arnold

In an issue of first impression, the court held that the simultaneous violation of two federal conspiracy statutes (Hobbs Act robbery and drug trafficking) could not support four counts of using a firearm to further these conspiracies in violation of § 924(c) (two for each robbery) on the sole basis of one firearm use for each robbery. “This case presents an issue of first impression in our circuit:  whether a defendant can be convicted of violating § 924(c) twice on the sole basis of using the same firearm one time to simultaneously further two different conspiracies.” The court declined to apply the rationale used in “underlying offense” case law, and instead applied Johnson to hold that “[i]n order for the government to convict a defendant of more than one § 924(c) charge, the defendant must use, carry, or possess a firearm—even if it is the same one—more than once.” Under the “rule of lenity,” the court noted that “‘the government must prove both a use, carry, or possession, as well as a qualifying crime.’” The defendant “took one affirmative firearm act (brandishing a handgun) while simultaneously committing two predicate offenses (conspiring to commit Hobbs Act robbery and to traffic drugs), and this does not support two § 924(c) convictions.” The court vacated two of the § 924(c) convictions, and remanded for entry of a revised judgment and sentence. It affirmed the defendant’s Hobbs Act convictions, finding that “the evidence supporting an interstate nexus for both robberies [wa]s more than enough” to allow a trier of fact to find the essential elements of a Hobbs Act violation beyond a reasonable doubt. The court rejected the defendant’s claim of a “multiplicity” violation on his two conspiracy charges, concluding that three of the five relevant factors militated against finding an “overarching conspiracy.” It also concluded that his sentence was not “substantively unreasonable.” Finally, there was sufficient evidence to convict him of being a felon in possession of a firearm where “at a minimum, defendant constructively possessed a firearm,” and there was sufficient incriminating evidence, including the “defendant’s own statements connecting him to the gun . . . .”