PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 13-4634

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JOSE ARMANDO BRAN, a/k/a Pantro,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:12-cr-00131-REP-1)

Argued: September 19, 2014 Decided: January 22, 2015

Amended: January 23, 2015

Before KING, SHEDD, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Shedd wrote the majority opinion, in which Judge Agee joined. Judge King wrote an opinion dissenting in part.

ARGUED: Mary Elizabeth Maguire, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Richard Daniel Cooke, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, Federal Public Defender, Patrick L. Bryant, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Dana J. Boente, Acting United States Attorney, Alexandria, Virginia, Roderick C. Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee. SHEDD, Circuit Judge:

A federal jury convicted Jose Armando Bran of five criminal

counts relating to his involvement with the street gang La Mara

Salvatrucha, also known as MS-13. On appeal, Bran primarily

argues that the district court erred by denying his motion for

judgment of acquittal on Count 3 and by imposing a mandatory

consecutive sentence for his Count 3 conviction. For the

following reasons, we affirm.

I

Bran was convicted of conspiracy to commit murder in aid of

racketeering (Count 1); murder in aid of racketeering (Count 2);

use of a firearm during a crime of violence causing death to

another (Count 3); conspiracy to commit murder in aid of

racketeering (Count 4); and maiming in aid of racketeering

(Count 5). Counts 1, 2, and 3 arise from the murder of Osbin

Hernandez-Gonzalez. Counts 4 and 5 arise from the attempted

murder of Florintino Ayala. The district court sentenced Bran to

120 months for Count 1, mandatory life for Count 2, 120 months

for Count 4, and 360 months for Count 5, all to run

concurrently, and life for Count 3, to run consecutively to the

sentences for Counts 1, 2, 4, and 5.

Generally, the government presented evidence at trial

tending to establish that Bran was the leader of the Richmond

Sailors Set, which is a violent clique of MS-13. During Bran’s

2 involvement with the Sailors Set, the clique was a criminal

enterprise engaged in drug trafficking, money transfers to MS-13

leadership in El Salvador, witness tampering, violent physical

assaults – including the attempted murder of Ayala and the

murder of Hernandez-Gonzalez – and other racketeering

activities.

Bran’s principal argument relates to his conviction and

sentence on Count 3. In Count 3, the government charged Bran

with violating three criminal statutes:

(c)(1)(A),

(j)(1), and

. Section

924(c)(1)(A) “prohibits the use or carrying of a firearm in

relation to a crime of violence or drug trafficking crime, or

the possession of a firearm in furtherance of such crimes,” and

a violation of the statute “carries a mandatory minimum term of

five years’ imprisonment,” United States v. O’Brien,

(2010), which must run consecutively to any other

sentence, Abbott v. United States,

(2010).

Section 924(j)(1) provides that a person who causes the murder

of another through the use of a firearm in the course of

committing a violation of § 924(c) shall “be punished by death

or by imprisonment for any term of years or for life.” Section

2 provides that a person “is punishable as a principal” if the

person: (a) “aids, abets, counsels, commands, induces or

procures” the commission of a criminal offense; or (b)

3 “willfully causes an act to be done which if directly performed

by him or another” would be a criminal offense.

Pertinent to Count 3, the government presented evidence

tending to establish that in July 2011, Bran ordered prospective

MS-13 members Jeremy Soto and Luis Cabello to murder Hernandez-

Gonzalez, whom Bran believed to be an informant for a rival

gang. Bran further instructed Michael Arevalo, another Sailors

Set member, to ensure Soto and Cabello successfully killed

Hernandez-Gonzalez. Bran gave Soto and Cabello a firearm to

commit the murder. Pursuant to Bran’s order, Arevalo, Soto, and

Cabello led Hernandez-Gonzalez to a path along the James River,

where they shot him four times using Arevalo’s firearm, stole

his cellphone, and left him to die which he did soon thereafter.

Soto and Cabello were later initiated into Sailors Set for their

participation in the murder.

Regarding Count 3, the district court instructed the jury

that the government had to prove three elements beyond a

reasonable doubt: (1) that Bran aided and abetted the murder of

Hernandez-Gonzalez; (2) that during and in relation to

commission of the murder, Bran knowingly aided or abetted the

use, carriage, or discharge of a firearm; and (3) that the

firearm caused the death of Hernandez-Gonzalez. The court

further instructed the jury that Bran could be convicted on

4 Count 3 under the theory of aiding and abetting. Bran did not

object to the jury instructions.

On the verdict form, the district court titled Count 3 “Use

of a Firearm During a Crime of Violence Causing Death to

Another.” J.A. 1311. The court instructed the jury to return a

general verdict on Count 3 and, if the jury determined Bran was

guilty, to then answer a three-part special interrogatory. The

interrogatory asked the jury to state whether Bran aided,

abetted, counseled, commanded, induced, or caused another to:

(1) use a firearm during and in relation to a crime of violence;

(2) carry a firearm during and in relation to a crime of

violence; and/or (3) cause a firearm to be discharged during and

in relation to a crime of violence. The court instructed the

jury that in answering the interrogatory, it should check which

fact or facts, if any, it unanimously found the government

proved beyond a reasonable doubt. Bran did not object to the

verdict form or the instructions by the court.

The jury returned guilty verdicts on all counts. As to

Count 3, the jury returned a general verdict of guilty and

answered in response to the special interrogatory that Bran

aided, abetted, counseled, commanded, induced, or caused another

to cause a firearm to be discharged during and in relation to a

crime of violence. Because the jury did not find that Bran aided

or abetted another to use or carry a firearm during and in

5 relation to a crime of violence, the district court convened

counsel upon receipt of the verdict to discuss the implications

of the jury’s answer to the special interrogatory. Ultimately,

all parties agreed that it would be inappropriate to ask the

jury any further questions about the verdict and to “go with the

verdict form as it is.” J.A. 1299.

Bran thereafter moved for judgment of acquittal arguing,

among other things, that the jury’s failure to specifically find

“use” of a firearm amounts to an acquittal on the § 924(j)

offense. The district court denied the motion. At sentencing,

the court imposed a life sentence for Count 3. Over Bran’s

objection, the court determined that § 924(c)(1)(A)(iii)

mandates that the § 924(j) life sentence run consecutively to

the sentences imposed for Counts 1, 2, 4 and 5.

II

As we have noted, Bran’s main arguments on appeal relate to

Count 3. Specifically, he contends that the jury verdict is

insufficient to support a conviction under § 924(j) and,

therefore, the district court erred in denying his motion for

judgment of acquittal. Further, he argues that the court erred

in interpreting § 924(j) to require a mandatory consecutive

sentence.

6 A.

Bran couches his challenge to his conviction under § 924(j) 1

as a challenge to the sufficiency of the evidence. We review a

challenge to the sufficiency of the evidence de novo, United

States v. Alerre,

(4th Cir. 2005), and we must

sustain the verdict if there is substantial evidence, viewed in

the light most favorable to the government, to support it, Burks

v. United States,

(1978). Substantial evidence is

evidence that a reasonable finder of fact could accept as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt. Alerre,

. A

defendant bringing a sufficiency challenge “must overcome a

heavy burden,” United States v. Hoyte,

(4th

Cir. 1995), and reversal for insufficiency must “be confined to

cases where the prosecution’s failure is clear,” Burks,

.

1 The appeal in this case was, at the very least, muddled. Throughout his appeal, Bran argued he had been convicted under § 924(c), until his rebuttal at oral argument when he argued for the first time his conviction was under § 924(j). The government appeared to argue in its brief that Bran had been convicted of both a violation of § 924(c) and § 924(j). However, at oral argument the government stated that Bran had been convicted only under § 924(j). Nevertheless, by the end of oral argument, both sides agreed with the district court that Bran had been convicted, if at all, under § 924(j).

7 In order to prove a violation of § 924(j), the government

must prove: “(1) the use of a firearm to cause the death of a

person and (2) the commission of a § 924(c) violation.” United

States v. Robinson,

(4th Cir. 2001). A

defendant can be convicted for aiding and abetting a § 924(j)

violation. See United States v. Foster,

(4th

Cir. 2007).

We hold that the evidence is clearly sufficient to support

Bran’s conviction under § 924(j). The jury was presented with

substantial evidence from which to find that Bran aided and

abetted the murder of Hernandez-Gonzalez through the use of a

firearm. As noted, the government presented evidence that Bran

commanded Soto and Cabello to murder Hernandez-Gonzalez, and he

provided them with a firearm to commit the murder. 2 Bran also

directed Arevalo to ensure the murder was successful.

Despite the fact that Bran generally characterizes the

challenge to his conviction under § 924(j) as a challenge to the

sufficiency of the evidence, his specific argument focuses more

narrowly on the jury verdict form and the effect of the special

interrogatory answer. Bran does not seriously contend that the

government failed to present adequate evidence for the jury to

2 When Soto and Cabello were carrying out Bran’s instruction, this gun misfired, so they used Arevalo’s gun to carry out Bran’s command to murder Hernandez-Gonzalez.

8 convict him under § 924(j). Rather, he claims that the jury

actually acquitted him of the § 924(j) charge when it did not

check the box that corresponded to the fact that Bran aided or

abetted the use of a firearm on the special interrogatory. We

disagree.

As an initial matter, Bran’s argument ignores the jury’s

general verdict of guilt on Count 3. Without objection, the

district court sufficiently instructed the jury as to the

elements required to sustain a conviction under § 924(j) and the

law of aiding and abetting under § 2. With those instructions,

the jury found Bran guilty of aiding and abetting the “Use of a

Firearm During a Crime of Violence Causing Death to Another.”

While the jury’s general guilty verdict alone is sufficient

to uphold Bran’s § 924(j) conviction, the jury’s special finding

regarding “caused a firearm to be discharged” further supports

the § 924(j) conviction. In the context of the evidence

presented at trial, the jury’s finding of “caused a firearm to

be discharged” necessarily includes a finding of “use of a

firearm.” See Smith v. United States,

(1993)

(broadly defining “use” of a firearm for purposes of § 924(c)).

9 For the foregoing reasons, we affirm Bran’s Count 3

conviction. 3

B.

Bran also argues that even if we affirm his § 924(j)

conviction, the district court erred by treating his sentence

for Count 3 as a mandatory consecutive sentence. We review this

issue de novo. United States v. Lighty,

(4th

Cir. 2010).

All but one circuit court to consider this issue have held

that a sentence imposed for a violation of § 924(j) must run

consecutively to other sentences because Congress intended that

punishment imposed for a § 924(j) violation be subject to the

consecutive sentence mandate of § 924(c). 4 See United States v.

Berrios,

(3d Cir. 2012) (“[B]ecause a § 924(j)

sentence is imposed on a defendant for violating subsection (c),

3 Bran also argues that the district court erred by denying his motion for judgment of acquittal as to each count of conviction because the evidence is insufficient to support a finding that he was involved in an enterprise engaged in racketeering activity. We hold that the evidence is more than sufficient for the jury to convict on all counts. Bran further contends that the court erred in denying his motion to exclude the government’s expert testimony regarding the criminal street gang MS-13. We hold that the court did not abuse its discretion in admitting the expert testimony. See United States v. Wilson,

(4th Cir. 2007) (noting abuse of discretion standard). 4 While these circuits may have differed in their view of § 924(j), they all agree on this point.

10 such a sentence is ‘imposed under’ subsection (c).”); United

States v. Battle,

(10th Cir. 2002) (“The plain

meaning of the words used in § 924(j) unequivocally provide that

if the evidence shows a violation of § 924(c) . . ., a district

court must impose a consecutive sentence over and above the

punishment prescribed for the violent crime.”); United States v.

Allen,

(8th Cir. 2001) (“Although § 924(j)

does not explicitly contain the same express mandatory

cumulative punishment language as found in § 924(c), it

incorporates § 924(c) by reference without disclaiming the

cumulative punishment scheme which is so clearly set out in §

924(c).”), vacated on other grounds,

(2002); see

also United States v. Young,

(2d Cir. 2014)

(holding that § 924(j) “incorporates the penalty enhancements of

§ 924(c)”), cert. denied,

(2014), and sub nom.

Chambliss v. United States,

(2014).

Only the Eleventh Circuit has held to the contrary. United

States v. Julian,

(11th Cir. 2011). Bran

argues that we should follow Julian, which held that a district

court has discretion to decide whether to impose a concurrent or

consecutive sentence for a § 924(j) violation. Julian, 633 F.3d

at 1253–56. We find the Eleventh Circuit’s reasoning

unpersuasive.

11 When interpreting a statute, we apply its plain language,

unless the result would be absurd. Lamie v. United States Tr.,

(2004). We also consider the specific context

in which that language is used, and the broader context of the

statute as a whole. Robinson v. Shell Oil Co.,

(1997). Here, the plain language of § 924(j) does not expressly

answer the question of whether any term of imprisonment imposed

thereunder must be consecutive. However, the language itself

suggests that such a sentence must be consecutive, and to read §

924(j) otherwise would create an absurd result.

Section 924(j)(1) reads: “A person who, in the course of a

violation of subsection (c), causes the death of a person

through the use of a firearm, shall – (1) if the killing is a

murder . . . be punished by death 5 or by imprisonment for any

term of years or for life.” (emphasis added). At a minimum, the

inclusion of the language “in the course of a violation of

subsection (c)” indicates that § 924(c) plays a role in a §

924(j) offense and, to understand that role, we must consider §

924(j) in the context of § 924(c).

Section 924(c) sets out the elements required to violate

that section. Additionally, § 924(c) sets out the nature of the

5 The government did not seek the death penalty in this case.

12 punishment thereunder; such punishment must be consecutive.

(c)(1)(D)(ii). No one, including Bran, contests

those points. Viewed in this light, “[i]t takes no special

insight or leap of logic to conclude that the central reason for

Congress’s choice of language in writing [§ 924(j)] – ‘during

the course of a violation of [§ 924(c)]’ – was to ensure that

separating out subsection (j) from subsection (c) did not

deprive the law of a coherent sentencing scheme, the heart of

which is the consecutive sentence mandate.” Berrios,

.

Further, because of the inclusion of the § 924(c) language,

to prove a violation of § 924(j), the government must prove that

a defendant also committed a violation of § 924(c). See United

States v. Smith,

, 335–36 (4th Cir. 2006).

Accordingly, a defendant who violates § 924(j) by definition

violates § 924(c), and would necessarily face a mandatory

consecutive sentence under § 924(c) if it had been charged as a

freestanding offense. Therefore, to read § 924(j) as not subject

to the consecutive sentence mandate of § 924(c) would mean that

a defendant convicted under § 924(j) would face a more lenient

sentencing scheme – under which a defendant’s sentence would not

have to be consecutive – simply because, in the course of

violating § 924(c), he murdered someone. To read § 924(j) in

this way would give rise to a truly absurd result with perverse

13 incentives; a defendant facing life or a term of years could

create a more favorable sentencing environment for himself by

committing a murder during his commission of the § 924(c)

offense. See Berrios,

; Battle,

;

Allen,

. It is “highly ‘unlikely that Congress,

which clearly intended to impose additional cumulative

punishments for using firearms during violent crimes in cases

where no murder occurs, would turn around and not intend to

impose cumulative punishments in cases where there are actual

murder victims.’” Berrios,

(quoting Battle,

); see also Allen,

. 6

III

For the foregoing reasons, we affirm the judgments of

conviction and sentence.

AFFIRMED

6 Of course, Congress could legislate that a sentence imposed for a violation of § 924(j) need not be consecutive. However, in the absence of clear language or context, we should not presume they intended such an anomalous and absurd result. See Berrios,

(“In light of the statutory scheme and purpose shared by subsection (c) and subsection (j), we simply cannot impute a contradictory intent to Congress without some underlying rationale.”).

14 KING, Circuit Judge, dissenting in part:

Because the district court was entitled to sentence Bran on

Count III to something other than a mandatory consecutive life

sentence, I respectfully dissent. In affirming Bran’s sentence,

my friends in the majority rely on the erroneous conclusion that

(c) requires a consecutive sentence on Bran’s

§ 924(j) conviction. As explained below, nothing in either

§ 924(c) or § 924(j) mandates such a ruling. I would therefore

vacate Bran’s sentence on Count III and remand.

The relationship between § 924(c) and § 924(j) is not

insignificant — each criminalizes a firearm offense occurring

during the commission of a crime of violence or a drug

trafficking offense. Notwithstanding those two shared elements,

§ 924(j) has a third and independent element (conduct causing

death). The penalty provisions of § 924(c) and § 924(j) are

also distinct. Of importance in that regard, a sentence under

§ 924(c) must run consecutively to any other sentence. See

(c)(1)(D)(ii) (the “consecutive sentence mandate”).

The consecutive sentence mandate applies, however, to § 924(c)

offenses only, as stated therein: “no term of imprisonment

imposed on a person under this subsection shall run concurrently

with any other term of imprisonment imposed on the person.” Id.

(emphasis added); see United States v. Julian,

,

15 1253 (11th Cir. 2011) (ruling that consecutive sentence mandate

not applicable to § 924(j) offense).

It is now undisputed that, on Count III, Bran was convicted

of violating § 924(j), an offense resulting in death “in the

course of” a § 924(c) violation.

(j). 1 The

alternative punishments authorized by § 924(j) — death, life, or

a term of years — do not refer to the consecutive sentence

mandate. See id. 2 Because a § 924(j) offense occurs in the

course of a § 924(c) violation, however, the majority rules that

the consecutive sentence mandate must be applied to a § 924(j)

1 Prior to oral argument, Bran and the prosecution disagreed over whether Bran had been convicted of a § 924(c) offense or a § 924(j) offense. That issue traced to the duplicitous indictment in this case, which alleged § 924(c) and § 924(j) offenses in a single count — Count III. In briefing, Bran challenged his Count III conviction on the ground that the jury had acquitted him of the § 924(j) offense and convicted him of violating § 924(c) only. At oral argument, Bran abandoned that position and agreed that he was convicted under § 924(j). 2 Pursuant to § 924(j) of Title 18:

A person who, in the course of a violation of subsection (c), causes the death of a person through the use of a firearm, shall —

(1) if the killing is a murder (as defined in [18 U.S.C. §] 1111), be punished by death or by imprisonment for any term of years or for life.

(2) if the killing is manslaughter (as defined in [18 U.S.C. §] 1112), be punished as provided in that section.

(j).

16 offense to avoid an “absurd result.” Ante at 12. The majority

relates that a defendant convicted under § 924(j) would

otherwise “face a more lenient sentencing scheme” than one

convicted under § 924(c). Id. at 13. For reasons I view as

compelling, I reject the majority’s ruling.

1.

First, a § 924(j) offense is discrete from a § 924(c)

offense, and must be treated accordingly. As we recognized

years ago, a § 924(j) offense is a separate violation of federal

law. See United States v. Johnson (Shaheem),

(4th

Cir. 2000). Judge Luttig’s opinion for the Court in that case

spelled out the elements of a § 924(j) offense: “(1) a drug

trafficking crime committed, (2) the use of a firearm during the

commission of the trafficking crime, and (3) malice aforethought

in causing the death of the victim in relation to the commission

of the crime.” Id. at 358 n.7. Soon thereafter, in United

States v. Robinson, Judge Wilkins’s opinion treated a § 924(j)

violation in a like manner. See

(4th Cir.

2001).

Nevertheless, the majority argues that its ruling today —

that the consecutive sentencing mandate applies to a § 924(j)

offense — garners support from four of our sister circuits.

Those decisions, however, analyzed the relationship between

§ 924(c) and § 924(j) in a fundamentally different manner than

17 does the majority. Two of those courts ruled that § 924(j) is a

sentencing factor only, and not a separate offense. See United

States v. Battle,

, 667 (10th Cir. 2002) (“Section

924(j) does not set forth a discrete crime.”); United States v.

Allen,

(8th Cir. 2001) (concluding that

Ҥ 924(j) is fairly interpreted as an additional aggravating

punishment for the scheme already set out in § 924(c)”). Two

other courts of appeals failed to definitively resolve the

discrete offense issue. See United States v. Berrios,

(3d Cir. 2012) (“Although the government concedes that

§ 924(j) establishes a discrete crime from § 924(c), this has no

bearing on our decision.”); see also United States v. Young,

(2d Cir. 2014) (unpublished) (observing that

§ 924(j) “likely indicates that it is a stand-alone offense”),

cert. denied,

(2014).

My position in this regard is simple. I would apply the

reasoning of the Eleventh Circuit in Julian, which is consistent

with our decisions in Johnson (Shaheem) and Robinson. See

. That is, § 924(j) constitutes a discrete offense

from § 924(c), and thus can only be punished under § 924(j).

2.

The foregoing discussion leads to my second point: Because

§ 924(j) is a discrete offense from a § 924(c) violation, a

sentence under § 924(j) does not produce an absurd result. And,

18 absent an express statutory mandate to the contrary, a federal

criminal offense does not require either a concurrent or a

consecutive sentence. That decision with respect to sentencing

is reserved to the discretion of the district court. See

(a) (“Multiple terms of imprisonment imposed at the

same time run concurrently unless the court orders or the

statute mandates that the terms are to run consecutively.”); see

also United States v. Johnson (Keith),

(4th

Cir. 1998) (determining that § 3584(a) “gives district courts

discretion in choosing concurrent or consecutive terms of

imprisonment”). Nonetheless, the majority cites the Supreme

Court as foreclosing application of the plain text of § 924(j).

Ante at 12 (citing Lamie v. United States Trustee,

(2004)). In its Lamie decision, however, the Court carefully

emphasized that “[i]t is well established that ‘when the

statute’s language is plain, the sole function of the courts —

at least where the disposition required by the text is not

absurd — is to enforce it according to its terms.’” Lamie,

(quoting Hartford Underwriters Ins. Co. v. Union

Planters Bank, N.A.,

(2000)). Because § 924(j)

does not require a particular disposition, we should simply

enforce its plain terms.

In any event, applying the plain terms of § 924(j) does not

produce an absurd result. As the government conceded at oral

19 argument, the potential availability of a death penalty is the

reason a prosecutor would pursue a charge under § 924(j). See

Julian,

(“The main point of section 924(j) is

to extend the death penalty to second-degree murders that occur

in the course of violations of section 924(c).”). To me, it

defies common sense to contend that a death sentence for a

§ 924(j) offense creates a more lenient sentencing scheme than a

non-death sentence under § 924(c). 3 Similarly, I readily reject

the majority’s contention that § 924(j) creates “perverse

incentives” for an aspiring criminal. Ante at 13-14. To the

contrary, a person contemplating commission of a § 924(c)

offense is not likely to commit murder merely to avoid the

consecutive sentence mandate.

On this record, we are obliged to presume that Congress

properly assessed each of the foregoing considerations when it

enacted § 924(j). See Russello v. United States,

(1983) (“Where Congress includes particular language in one

section of a statute but omits it in another section of the same

Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.”)

3 I note that the death penalty is potentially available under § 924(c)(5) for causing death by use of armor piercing ammunition. See

(c)(5)(B)(i). Bran, however, was not charged with any such offense.

20 (brackets omitted). Rather than second-guess Congress and

judicially amend § 924(j) to include the consecutive sentence

mandate, I would simply rule that § 924(j) — rather than

§ 924(c) — controls Bran’s sentence for the § 924 offense in

Count III.

Pursuant to the foregoing, I would vacate Bran’s

consecutive life sentence on Count III and remand. The

sentencing court should be entitled to exercise its informed

discretion, pursuant to

, to impose a sentence

on Count III that is either consecutive or concurrent.

I respectfully dissent.

21