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UNITED STATES v. CASIANO

April 5, 1996

UNITED STATES OF AMERICA
v.
JOSE CASIANO



The opinion of the court was delivered by: BRODY

 Brody, J.

 This memorandum is written pursuant to Local Appellate Rule 3.1, which provides that, within fifteen (15) days of the filing of an appeal, a judge of this court may file a written opinion or a written amplification of a prior oral ruling. I write to amplify several points in my rulings from the bench during the sentencing of the defendant, Jose Casiano.

 The primary issue in this appeal is the interpretation of a statute, 18 U.S.C. § 924(c)(1), in light of the recent Supreme Court decision in Deal v. United States, 508 U.S. 129, 113 S. Ct. 1993, 124 L. Ed. 2d 44 (1993). The statute prescribes additional penalties for certain crimes if they are committed with deadly weapons. There is a substantial difference between the prison term mandated for the defendant by the government's interpretation of the statute and that mandated by the defendant's interpretation.

 BACKGROUND

 The facts of this case may be summarized as follows: *fn1" On July 6, 1995, the defendant in this sentencing, Jose Casiano ("Casiano"), together with co-defendant, Alfredo DeJesus, ("DeJesus") and a juvenile, got a ride from Camden, New Jersey to Philadelphia, Pennsylvania to visit Casiano's cousin. The cousin was not at home, but his daughter was, and the defendants stayed in the house for several hours snorting heroin and phencyclidine. When the cousin did not return, the three left and began walking towards Camden.

 One of the defendants suggested they steal a car, and shortly thereafter they saw Father Marc Shinn, a Russian Orthodox priest, getting out of his 1986 Dodge van. DeJesus, who had an automatic pistol, approached Father Shinn, hit him with the butt of the gun, and forced him into the back of the van. DeJesus told Father Shinn that because the priest had seen his face, DeJesus would have to kill him. With DeJesus driving, Casiano in the passenger seat, and the juvenile in the back of the van with Father Shinn, the defendants took the van to Camden. As they drove, the defendants discussed how and where they would kill the victim. The juvenile, who also had a firearm, sat on top of Father Shinn in the back of the van during the trip. He repeatedly pistol-whipped and threatened him, and committed other indignities. Father Shinn lost consciousness several times during the trip.

 After driving for forty-five minutes to an hour, the defendants stopped the van near a remote trailer park in Camden. Casiano and the juvenile forced Father Shinn out of the van. The juvenile walked him down a dark dirt road, told him to get down, and fired twice at his back, hitting him once. The juvenile went back to the van, shouting, "I shot! I shot!" to his companions, and they all fled in the van, apparently leaving Father Shinn for dead. Bleeding heavily from a gunshot wound to his shoulder, Father Shinn managed to make his way to a trailer home where the residents helped him and let him call the police. Within an hour, the emergency medical technicians who had taken Father Shinn to the hospital saw his van with people inside it parked by a bar. They called the police, who arrived to find the three defendants and various firearms in the van. Casiano thereafter pleaded guilty to all five counts of the indictment: conspiracy to commit carjacking and kidnapping, in violation of 18 U.S.C. § 371; aiding and abetting carjacking, in violation of 18 U.S.C. § 2 and 18 U.S.C. § 2119; use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1); kidnapping, in violation of 18 U.S.C. § 1201(a)(1); and a second count of use of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1).

 DISCUSSION

 
The statute in question provides in relevant part:
 
Whoever, during and in relation to any crime of violence . . . for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence . . . , be sentenced to imprisonment for five years, . . . . In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years; . . .

 18 U.S.C. § 924(c)(1). The key phrase is "second or subsequent conviction." The government proposes that the use of a gun during the carjacking counts as the first section 924(c)(1) violation, for which the defendant must receive an additional sentence of five years, and the use of a gun during the kidnapping counts as a "second or subsequent conviction," for which he must receive an additional twenty years. The defendant argues that the use of a gun during the kidnapping should not count as a "second conviction" because all of the charges resulted from a single criminal episode involving a single victim.

 I adopt the government's position because I find it more consistent with the Supreme Court's construction of section 924(c)(1) in Deal v. United States. The defendant in Deal used a gun to commit six bank robberies on six different dates; however, he was convicted of all of them in a single proceeding. Thomas Deal was charged with six counts of bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and with six counts of carrying and using a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1). 113 S. Ct. at 1995. The district court sentenced Deal to 5 years additional imprisonment on the first section 924(c)(1) count and to 20 years on each of the five other section 924(c)(1) counts, the terms to run consecutively. Both the court of appeals and the Supreme Court affirmed. Id.

 In response to Deal's argument that a "second or subsequent conviction" for purposes of section 924(c)(1) had to occur in a separate adjudication, the Supreme Count held that the word "conviction" in the statute did not refer to the entry of a final judgment of conviction, but rather to the finding of guilt that necessarily preceded that entry. *fn2" 111 S. Ct. at 1996. Therefore, the finding of guilt on each count after the first was "second or subsequent." The majority rejected as "nothing but personal intuition" the dissent's conclusion that the statute was directed at those who "failed to learn their ...


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