By Carson Smith
Today, in the criminal case United States v. Bran, the Fourth Circuit affirmed the Eastern District of Virginia, upholding both the conviction of Jose Armando Bran for conspiracy to commit murder and the district court’s interpretation of federal sentencing guidelines under 18 U.S.C. § 924(j).
Defendant Contends Trial Court Erred in Upholding His Conviction for Conspiracy to Commit Murder and Erred in Imposing a Mandatory Consecutive Sentence for the Conviction
Bran raised the following two issues on appeal: (1) the jury verdict was insufficient to convict on conspiracy to commit murder under § 924(j); and (2) the trial court erred in imposing a mandatory consecutive sentence for the conviction under § 924(j).
Defendant Was Convicted on Three Counts Related to the Murder of Osbin Hernandez-Gonzalez
At trial, the government argued that Bran was the leader of Richmond Sailors Set, a violent sect of the MS-13 gang. The evidence established that in July 2011, Bran ordered two prospective members, Jeremy Soto and Luis Cabello, to kill Hernandez-Gonzalez as part of their initiation. Bran provided Soto and Cabello with a firearm to commit the murder and also ordered a current member, Michael Arevalo, to ensure that the murder was carried out.
Based on the order, Soto and Cabello carried out the murder, shooting Arevalo four times and leaving him to die by the James River. While Bran provided Soto and Cabello with a murder weapon, the firearm proved faulty. Instead, Soto and Cabello used Arevalo’s firearm to carry out the murder.
Bran was charged and convicted of three felonies for his role in the murder: (1) conspiracy to commit murder in aid of racketeering; (2) murder in aid of racketeering; and (3) use of a firearm during a crime of violence causing death to another. He was sentenced to 120 months for Count 1, mandatory life for Count 2, and life for Count 3. The trial judge ordered the life sentence for Count 3 to run consecutively with the other parts of the sentence.
The jury was given several instructions with regards to Count 3 under § 924(j). The jury was asked to fill out a three-part special interrogatory if they found Bran guilty. The interrogatory asked 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. Even though the jury found him guilty of Count 3, the jury failed to find the second and third parts of the interrogatory beyond a reasonable doubt.
The Evidence at Trial Was Clearly Sufficient to Support Bran’s Conviction Under § 924(j)
Bran argued that the evidence at trial was not sufficient to support his conviction under § 924(j). While an appellate court reviews sufficiency of the evidence challenges de novo, a court need only find that there was enough substantial evidence at trial for a reasonable juror to find the defendant guilty of the charge.
In order to convict a defendant under § 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.” § 924(c) “prohibits the use or carrying of a firearm in relation to a crime of violence or drug trafficking crime . . .” Finally, 18 U.S.C. § 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) “willfully causes an act to be done which if directly performed by him or another” would be a criminal offense.” Pursuant to 18 U.S.C. § 2, Bran was charged as the principal for both the § 924(c) and § 924(j) violations.
The Fourth Circuit held that the trial court did not err in convicting Bran under § 924(j). The evidence at trial was clearly sufficient to find that Bran aided and abetted the murder of Hernandez-Gonzalez through the use of a firearm. While Bran ostensibly claimed that the evidence did not support the conviction, the bulk of his argument focused on the juries failure to find all three of the special interrogatories. However, the Fourth Circuit emphasized that the jury found Bran guilty on the general verdict form and found that he “caused a firearm to be discharged.” The “caused” language should be interpreted broadly to encompass “use of a firearm” under 924(j). Therefore, the conviction was affirmed.
The Trial Court Did Not Err in Applying a Mandatory Consecutive Sentence for the § 924(j) Conviction
Bran argued that the trial court erred in applying a mandatory consecutive sentence for the § 924(j) conviction. Bran argued that sentencing under § 924(j) should be left up to the discretion of the judge. This issue was reviewed de novo.
According to the majority, the relation between § 924(c) and § 924(j) requires that the latter be interpreted to require mandatory consecutive sentencing. Because § 924(j) is separated out from § 924(c), Congress must have intended for § 924(j) to be given the effect of enhancing the sentence imposed by conviction under § 924(c). To interpret the statute otherwise would lead to the conclusion that a person with a § 924(c) conviction which resulted in murder could face a more lenient sentencing scheme than if the murder never occurred. The majority also emphasized that of the five circuits to have been presented with this issue, four have held that § 924(j) requires mandatory consecutive sentencing. For these reasons, the majority affirmed the trial court’s decision.
The dissent disagreed with the majority primarily on two points. First, the dissent argued that § 924(j) is discrete from § 924(c). Thus, the express statutory mandate of § 924(c) should not be applied to § 924(j). Second, Congress enacted § 924(j) so that prosecutors could “extend the death penalty to second-degree murders.” The power to impose the death penalty does not result in a more lenient sentencing scheme. For these reasons, § 924(j) should not be interpreted as requiring mandatory consecutive sentencing.
Fourth Circuit Affirmed the Conviction and Sentencing of the Trial Court
Accordingly, the Fourth Circuit upheld the trial court’s conviction of Bran under § 924(j) and the trial court’s interpretation of § 924(j) as requiring mandatory consecutive sentencing.
