from the United States District Court for the District of New
Mexico (D.C. No. 1:09-CR-2962-WJ-3)
M. Davidson, The Appellate Law Office of Scott M. Davidson,
Ph.D., Esq., Albuquerque, New Mexico, for
Paige Messec, Assistant United States Attorney (Damon P.
Martinez, United States Attorney, with her on the brief),
Albuquerque, New Mexico, for Plaintiff-Appellee.
BRISCOE, SEYMOUR, and McHUGH, Circuit Judges.
SEYMOUR, Circuit Judge.
case arises out of two restaurant robberies in 2009 during
one of which Francisco Melgar-Cabrera's cohorts shot and
killed a waitress. Mr. Melgar-Cabrera was charged with
numerous crimes but was not immediately tried because he fled
to El Salvador. He was extradited in 2013 and subsequently
convicted and sentenced to life imprisonment pursuant to 18
U.S.C. § 924(j) for causing the death of a person while
using a gun to commit a § 924(c) crime of violence. He
appeals, contending that Hobbs Act robbery, the underlying
crime for which he was charged, is not categorically a crime
of violence. Before addressing the Hobbs Act issue, however,
we consider an additional matter that neither Mr.
Melgar-Cabrera nor the government raised: the fact that in
this circuit, § 924(j) has been held to constitute a
sentencing enhancement, not a separate crime. United
States v. Battle, 289 F.3d 661, 666 (10th Cir. 2002)
(disagreeing with defendant's "contention that
§ 924(j) sets forth 'an aggravated crime
different from § 924(c), '" and instead
holding "[s]ection 924(j) describes the sentencing
factors that must be proved in order to impose a consecutive
sentence of death, life imprisonment or a term of years"
for someone who causes death while using a firearm to commit
a crime of violence). We do so because the El Salvador
Supreme Court granted extradition of Mr. Melgar-Cabrera only
after holding that he could not be charged with or convicted
of a § 924(c) crime. The government subsequently
re-indicted Mr. Melgar-Cabrera and charged him with violating
§ 924(j), and he was convicted of that "crime"
rather than a § 924(c) offense. We ordered supplemental
briefing on the § 924(j) issue. We affirm.
13, 2009, Mr. Melgar-Cabrera and two cohorts robbed a Lone
Star Steakhouse at gunpoint. On June 20, the same three men
robbed a Denny's restaurant at gunpoint. During the
course of this second robbery, one of the men shot and killed
Stephanie Anderson, a waitress at the restaurant. On April 4,
2010, the government indicted Mr. Melgar-Cabrera and his
co-defendants. The charges against Mr. Melgar-Cabrera
stemming from the Lone Star robbery included a count for
conspiracy to commit and committing Hobbs Act robbery in
violation of 18 U.S.C. § 1951(a), and a charge for using
a gun in relation to that crime of violence in violation of
§ 924(c). The charges against him stemming from the
Denny's robbery also included counts for conspiracy to
commit and committing Hobbs Act robbery and for using a gun
in relation to that crime. In addition, the government
charged Mr. Melgar-Cabrera under § 924(j) for causing
the death of Stephanie Anderson while using a gun to commit a
crime of violence.
the robberies, Mr. Melgar-Cabrera fled to El Salvador. The
United States requested his extradition on October 2, 2013
for all of the counts listed above. The Supreme Court of
Justice of the Republic of El Salvador denied extradition as
to both conspiracy counts and both counts involving §
924(c) because it concluded that neither crime was
"included in the list of crimes of the Bilateral
Extradition Treaty." ROA vol. 1 at 328. Accordingly, the
court granted extradition for only two offenses:
"committing aggravated murder while using and carrying a
firearm during and in relation to a crime of violence and
aiding and abetting . . . [and] interfer[ing] with interstate
commerce by robbery and violence and aiding and
abetting." Id. at 342.
back in the United States, Mr. Melgar-Cabrera filed a motion
to dismiss all counts on which the Salvadoran Supreme Court
did not grant extradition. The government agreed and filed
its own motion to dismiss. The government explained:
2. Pursuant to the Treaty, the Government of the United
States has obligations governed by the Rule of Specialty, as
set forth in Article IV of the Treaty, to the effect that a
defendant shall not be tried or punished for any crime or
offense other than those for which extradition is granted.
3. The Salvadoran Supreme Court extradited Defendant on the
offenses charged in Count 4 and Counts 3 and 13 of the Second
Superseding Indictment which charge Committing Felony Murder
While in Violation of 18 U.S.C. §§ 924(j), 1111,
and 2; and Interference with Interstate Commerce by Robbery
and Violence and Aiding and Abetting in violation of 18
U.S.C. §§ 1951(a) and 2 respectively.
Id. at 532-533. The only charges remaining, the
government asserted, were two counts of Hobbs Act robbery
(one stemming from each robbery) in violation of §
1951(a), and one count "which charges Defendant with
Committing Felony Murder While in Violation of 18 U.S.C.
§§ 924(j)(1), 1111 and 2." Id. at
534. The district court granted the government's motion
trial, Mr. Melgar-Cabrera moved to dismiss the felony murder
charge, arguing that Hobbs Act robbery could not serve as a
predicate "crime of violence" under § 924(c),
which is necessary for a violation of § 924(j). The
district court denied his motion and Mr. Melgar-Cabrera was
convicted on all three counts. On December 1, 2015, the
district court sentenced him to life imprisonment on the
§ 924(j) felony murder count and twenty years for each
Hobbs Act robbery count, to run concurrently. He appeals.
we turn to the merits of Mr. Melgar-Cabrera's appeal, we
address whether § 924(j) is a separate crime in order to
clarify the law in this circuit and to avoid confusion in
future cases. We begin with 18 U.S.C. § 924(c)(1), which
sets forth a discrete crime for using or carrying a firearm
in furtherance of a crime of violence or drug trafficking
crime. See Abbott v. United States, 562 U.S. 8, 12
Congress placed this "discrete crime" in 18 U.S.C.
§ 924, a statutory section labeled
"Penalties." See Gun Control Act of 1968,
Pub. L. No. 90-618, § 101, 82 Stat. 1213. In United
States v. Sudduth, 330 F.Supp. 285, 289 (D. Colo. 1971),
one of the earliest cases discussing § 924(c), the
district court noticed this oddity and held that §
924(c) did not create a discrete crime, stating that
"[w]hen Congress devoted several pages to phrasing Sec.
922 which creates the unlawful acts, it is difficult to
accept an argument that Congress impliedly intended to create
an offense under the section of the Act headed
'Penalties.'" We reversed that conclusion in
United States v. Sudduth, 457 F.2d 1198, 1201 (10th
Cir. 1972), stating that "[a]n examination of the events
surrounding the enactment of section 924(c) and an evaluation
of its wording leads us to the conclusion that it was
intended to create a separate crime. It is obvious, however,
that the matter is by no means free of doubt . . . ." In
its first case interpreting § 924(c), the Supreme Court
approvingly cited our Sudduth opinion and declared
that § 924(c) "creates an offense distinct from the
underlying federal felony, " before holding that a
defendant could not be punished under both § 924(c)(1)
and the enhanced punishment provision for bank robbery under
§ 2113(d). Simpson v. United States, 435 U.S.
6, 10-13 (1978), superseded by statute,
Comprehensive Crime Control Act of 1984, Pub L. 98-473,
§ 1005(a), 98 Stat. 2138-39, as recognized in United
States v. Gonzales, 520 U.S. 1, 10 (1997). The Court
thus ended any debate as to whether Congress intended §
924(c) to be a discrete crime or a sentencing enhancement.
another provision under the "Penalties" subheading
is § 924(j), which is at the center of this case. It
provides that "[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 . . . if the killing is a
murder (as defined in section 1111), be punished by death or
by imprisonment for any term of years or for life . . .
." 18 U.S.C. § 924(j). Notably, we held in
Battle, 289 F.3d at 666, that § 924(j) is not a
discrete crime but is instead a sentencing enhancement. One
other circuit has agreed with this conclusion. See United
States v. Allen, 247 F.3d 741, 769 (8th Cir. 2002)
("§ 924(j) is fairly interpreted as an additional
aggravating punishment for the scheme already set out in
§ 924(c)"), vacated on other grounds, 536
U.S. 953 (2002). Other circuits, however, have held or
strongly insinuated that § 924(j) is a discrete crime.
See United States v. Berrios, 676 F.3d 118, 142 n.17
(3d Cir. 2012) (stating evidence "strongly suggest[s]
that Congress intended" § 924(j) to be considered
discrete crime but determination of issue not necessary to
outcome of case); see also United States v. Julian,
633 F.3d 1250, 1253 (11th Cir. 2011) ("The facts that
the government must prove for a criminal to receive a
sentence-including a potential sentence of death-under
section § 924(j) comprise elements, not sentencing
factors."); United States v. Young, 561 F.
App'x. 85, 94 (2d Cir. 2014) (unpublished) (observing
that § 924(j) "likely indicates that it is a
Mr. Melgar-Cabrera was charged with and convicted of
violating § 924(j), he never made an objection, either
at trial or on appeal, concerning § 924(j)'s status
under Battle as a sentencing factor rather than a
discrete crime. "While this ordinarily constitutes a
waiver of the issue . . . our case law unquestionably
recognizes our inherent power to raise an issue sua
sponte as plain error under circumstances strongly
implying a fundamental defect or error of sufficient
magnitude to undermine our confidence that justice was
served." United States v. Santistevan, 39 F.3d
250, 256 (10th Cir. 1994); see also Fed. R. Crim. P.
52(b) ("A plain error that affects substantial rights
may be considered even though it was not brought to the
court's attention."). A defendant being convicted of
a crime that is not a crime certainly qualifies as
"circumstances strongly implying a fundamental
defect." Santistevan, 39 F.3d at 256. Thus, we
exercise our discretion to review for plain error. Plain
error occurs "when there is (1) error, (2) that is
plain, which (3) affects substantial rights, and which (4)
seriously affects the fairness, integrity, or public
reputation of judicial proceedings." United States
v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015),
abrogated on other grounds by Beckles v. United
States, 137 S.Ct. 886 (2017). The government has
convinced us there was no error here.
rested on a shaky foundation from the beginning. There, Mr.
Battle was charged with one count of Hobbs Act robbery and
one count of causing the death of a person with a firearm
during the commission of the robbery, in violation of §
924(c) and § 924(j). Battle, 289 F.3d at 663.
The court sentenced Mr. Battle to 240 months imprisonment for
the Hobbs Act violation and life imprisonment for the
violation of § 924(c) and (j), to be served
consecutively. Id. A district court generally has
discretion to impose consecutive sentences, see 18
U.S.C. § 3584, but normally it must state its reasons
for doing so, see United States v. Rose, 185 F.3d
1108, 1112-13 (10th Cir. 1999). In Battle, however,
the district court had not done so. We noted that we were not
compelled to overturn the district court's decision
because § 924(c)(1)(D)(ii) specifically forbids the
imposition of concurrent sentences for § 924(c)
violations and the underlying crime of violence.
Battle, 289 F.3d at 665. Although Mr. Battle argued
that the district court had erred when it imposed consecutive
sentences without stating its reasons for doing so because
§ 924(j) is a discrete crime from § 924(c), we
rejected his argument by concluding that § 924(j) was
only a sentencing enhancement. Id. at 666. We held
accordingly that "§ 924(c) unambiguously mandates
the imposition of a consecutive sentence 'in addition
to' the punishment ordered for the use of a firearm
during the commission of a crime of violence where the
evidence demonstrates the existence of the aggravating
sentencing factors set forth in § 924(j)."
Id. at 669.
the government pointed out in its supplemental brief, Aple.
Supp. Br. at 1, 10, Battle never discussed, or even
cited, the recently decided landmark Supreme Court decision
of Apprendi v. New Jersey, 530 U.S. 466 (2000). In
Apprendi, the Court held that "any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." Id. at 491.
Thereafter, in Ring v. Arizona, 536 U.S. 584 (2002),
the Court addressed Arizona's sentencing scheme, which
allowed a judge to increase a defendant's maximum
punishment from life imprisonment to a death sentence by
finding an aggravating factor beyond a reasonable doubt.
Id. at 598. An earlier Supreme Court case had held
Arizona's sentencing scheme constitutional after
concluding that the additional facts found by the judge
qualified as sentencing considerations and not
"element[s] of the offense of capital murder."
Walton v. Arizona, 497 U.S. 639, 649 (1990).
Ring held Walton to be irreconcilable with
Apprendi and "overrule[d] Walton to
the extent that it allow[ed] a sentencing judge, sitting
without a jury, to find an aggravating circumstance necessary