United States v Rentz

Rentz sought en banc review of the panel opinion that allowed him to be tired for multiple firearms charges even though he only used one gun to fire one shot which injured one and killed another. Review was granted and the Circuit, 10 (6 judge majority plus 4 member concurrence with one concurring judge adding another concurrence)-1, vacated the panel opinion and affirmed the district court which had dismissed one of the two firearms charges. The majority held that applying the rules of grammar suggest that the proper unit of prosecution is a use, carrying or possession of the firearm and the commission of certain crimes. Thus, when one gun is used and multiple federal offenses could be charged, there can only be one count under 18 USC 924(c). The majority held that legislative history was not to the contrary and if the language could be read to allow multiple counts, the rule of lenity applied and thus whether under the language of the statute or lenity, only one crime was committed here. The spate concurrence argued that because 924(c) is a criminal statue and not a sentence enhancement and it is unclear whether one physical act violating two or more drug or violence statutes should result in one or multiple consecutive sentences, lenity applied. The main concurrence argued that 924(c) is ambiguous, the ambiguity cannot be resolved after reviewing legislative history or applying the public policy of deterrence and thus lenity must be applied. This concurrence noted this is consistent with the holdings in four of the five circuits to decide the issue and further noted that the 10th circuit precedent tot eh contrary is not binding at the en banc stage and in any event was poorly reasoned. The dissent argued that 924(c) is not ambiguous and every combination of gun use and a drug or violent crime is a separate unit of prosecution. The dissent argued this construction is consistent with recent United States Supreme Court precedent and the 10th circuit precedent overruled by the majority.