Argued November 26, 2012
Appeals from the United States District Court for the Southern District of Illinois. Nos. 10 CR 30106 & 10 CR 30200 — G. Patrick Murphy, Judge.
Before Rovner, Williams, and Tinder, Circuit Judges.
Williams, Circuit Judge.
After Thomas Cureton's roommate failed to bring him $9, 000 in cash that he had hidden in their freezer, he kidnapped her, assaulted her, held a gun to her to her head, and demanded that she call relatives to obtain cash. A jury convicted Cureton of attempted extortion and interstate communication of a ransom request, as well as three counts of drug distribution for events from different days that were tried at the same time. In light of the overwhelming evidence against him, we find that any error in admitting evidence that Cureton had obtained the cash by robbing drug customers at gunpoint was harmless. However, we agree with him that one of his two 18 U.S.C. § 924(c)(1) convictions for using a firearm in connection with a violent felony must be vacated. While the government maintains two convictions are proper because he used the gun in connection with two different predicate offenses, both convictions are based on the exact same conduct—Cureton pointing a gun at his roommate and demanding she make calls to obtain money. Because there is only a single use of a single gun, and the predicate offenses were committed simultaneously without any differentiation in conduct, only one § 924(c)(1) conviction can stand. As a result, we vacate Cureton's sentence and remand for resentencing.
Two criminal cases against Thomas Cureton were tried together. In the first case, the government charged Cureton with four counts of distributing crack cocaine and one count of being a felon in possession of a firearm. At trial, the government presented evidence that on December 31, 2009, January 4, 2010, and January 7, 2010, Cureton sold crack cocaine to a confidential informant in Belleville, Illinois. On December 31, 2009, a police inspector watched as a confidential informant called Cureton to set up a drug buy. The inspector searched the informant, gave him $60 in recorded bills, watched as the informant and Cureton entered the same building, and then received crack cocaine from the informant that the informant said Cureton sold him. Another officer maintained surveillance on Cureton as he left his home and drove to the building to meet the informant.
The informant made two more crack cocaine buys from Cureton on January 4, 2010. In similar fashion to the December 31 purchase, an officer watched Cureton leave his apartment and proceed to the agreed upon location. In the first buy that day, Cureton and the informant both entered the building upon their arrival. Soon after Cureton arrived, the informant left the building and returned to the inspector with crack cocaine that he said he purchased from Cureton while in the building. This sale took place at the apartment of William Bosley, who testified that he watched the drug transaction between Cureton and the informant. In the second January 4 buy, the inspector stated that he watched the informant get into Cureton's car, that no one else was in the car, and that the informant came to the inspector a few minutes later with crack cocaine he said he bought from Cureton. The government contended that the informant also bought crack cocaine from Cureton on January 7, but the jury acquitted Cureton of this charge.
During a warrant search of Cureton's home later in the day on January 7, law enforcement agents found inside Cureton's wallet one of the marked bills that agents had given to the confidential informant on December 31, 2009 to buy crack cocaine from Cureton. The second controlled buy had taken place in Bosley's apartment, and officers recovered from Bosley's ceiling tiles two pistols in a plastic bag, ammunition, and an electronic scale that Bosley said Cureton had hidden there. Cureton's fingerprints were found on the bag containing the pistols and also on the scale.
In the second case, Cureton faced charges of interstate communication of a ransom request, attempted extortion, and two counts of possession of a firearm in furtherance of a crime of violence for events on June 14, 2010. Two days earlier, on June 12, a man named Eddie Sakosko had approximately $9, 800 in cash on him from the recent sale of his home. Sakosko, Jeffrey Day, and a few other friends decided to use some of the money to buy crack cocaine. Day called Cureton, and Cureton delivered drugs to the group. The friends smoked all the crack cocaine and wanted more, so they called Cureton again, and Cureton returned. This time, after Cureton, Day, and Sakosko went into a garage, Cureton pulled out a gun and demanded money from Sakosko. At one point, Sakosko tried to get the gun away from Cureton, and the gun discharged. (No one was injured.) Cureton left with $9, 500 of Sakosko's cash, and Day and his associates called the police and reported the robbery.
Two days later, Cureton and his wife LaQuita Cureton (we will refer to her by her first name for convenience) left the apartment they shared with eighteen-year-old Ashley Lawrence and her boyfriend, Demetrius Anderson, who was also LaQuita's brother. A short time later, the police arrived looking for Cureton. Anderson talked to LaQuita on the phone after the police left, and she relayed that she and Cureton wanted cash and LaQuita's puppy brought to them. It was decided on the phone that having Lawrence bring the money to them would be less suspicious because the police had seen Anderson. Anderson then directed Lawrence to bring $9, 000 in cash that was hidden in the freezer to Cureton and LaQuita in a nearby park. He also told Lawrence to bring the puppy.
Lawrence testified at trial that she put the money in a newspaper, which she put inside a plastic bag, and that she then carried both the package and LaQuita's puppy toward the park. Lawrence said she dropped the newspaper several times as she attempted to also hold the dog and at some point realized the money was missing. When she noticed that the money was gone, she said she called LaQuita right away and told her what had happened. As Lawrence was retracing her steps looking for the cash, Cureton arrived in a friend's car and demanded to know where the money was, saying to her that he "shot a motherf'er in the head for the money." He ordered Lawrence to get in the car, and they went to a friend's house. Inside, in the basement, Cureton screamed at Lawrence, punched her, threatened her, and questioned her about where the money was. Cureton eventually acquiesced to her request for a chance to find the money. Anderson and LaQuita picked up Lawrence and drove her to retrace her steps, but the search was unsuccessful.
When Lawrence returned to the house, Cureton took her behind a garage and punched her repeatedly, broke her nose, kicked her, choked her, and tied her up. He also made a phone call and instructed the person on the receiving end of the line to bring him "that thing." Cureton's brother arrived about ten minutes later and handed Cureton a gun. Cureton put the gun to Lawrence's head and told her it was her last chance.
Cureton, Lawrence, and LaQuita then got into the Curetons' parked car, and, under pressure from Cureton, she began making calls to family members. Lawrence first called her mother, saying she needed money to get out of a problem, but her mother was hesitant in light of Lawrence's past history of lying. She called her stepfather and told him that she needed money and was in trouble, but he did not offer to provide money either. Finally, she reached her grandfather, who also had doubts about Lawrence's request. Cureton took the phone and spoke to Lawrence's grandfather, who then agreed to make a wire transfer of about $4, 500. Cureton, Lawrence, and LaQuita then headed back to their apartment. Police officers contacted by Lawrence's family were present there, and Cureton was ultimately arrested and charged with interstate communication of a ransom request, attempted extortion, and two counts of possession of a firearm in furtherance of a crime of violence.
Before trial, Cureton's attorney moved in limine to bar any evidence that Cureton had stolen $9, 500 at gunpoint from prospective drug buyers on June 12, 2010. The district court ruled that the evidence was relevant to Cureton's motive and allowed it.
A jury convicted Cureton on eight of the charged counts and found him not guilty on one count of drug distribution. The judge sentenced Cureton to concurrent 360-month terms for the three drug distribution convictions. Concurrent to that, the judge imposed a 120-month sentence on the felon in possession of a firearm count, a concurrent 240-month sentence for the interstate communication of a ransom request conviction, and another concurrent 240-month sentence for the attempted extortion count. Consecutive to these sentences, the judge imposed a sentence of 84 months for using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1) for the crime of violence of an interstate communication of a ransom request. The judge imposed another consecutive sentence of 300 months' imprisonment for using a firearm during a second or successive crime of violence in ...