UNITED STATES of America, Plaintiff-Appellee, v. Frederick Allen GRUBER, Defendant-Appellant, 192 F. App'x 773

ORDER AND JUDGMENT ROBERT H. HENRY, Circuit Judge. During a two-stage bifurcated trial, a jury convicted Frederick Allen Gruber of charges made against him by indictment, including Count 2, which charged Mr. Gruber with assaulting, resisting, opposing, impeding, intimidating, or interfering with a federal officer while using a dangerous weapon in violation of 18 U.S.C. § 111(a) & (b). Mr.

Gruber appeals only his conviction with respect to this charge, arguing that there was insufficient evidence to support a conviction for a violation of 18 U.S.C. § 111(b), which provides for an enhanced penalty where a defendant “uses a deadly or dangerous weapon” when assaulting, resisting, opposing, impeding, intimidating, or interfering with a federal officer in violation of 18 U.S.C. § 111(a). He does not dispute the sufficiency of the evidence with respect to his conviction pursuant to § 111(a). We agree with Mr.

Gruber that the government did not present sufficient evidence to prove that he “use[d]” the gun that was found at the scene of the incident with the federal officer, and we therefore reverse his conviction and remand for re-sentencing in accordance with this opinion. I. BACKGROUND The evidence, viewed favorably to the jury verdict, shows that on the morning of July 31, 2003, a man wearing a Groucho Marx mask robbed the First National Bank in Ardmore, Oklahoma. The perpetrator, later found to be Mr. Gruber, used a gun to commit the robbery and fled from the scene of the crime.

Some time thereafter, law enforcement officials received information possibly connecting Mr. Gruber with the Ardmore robbery. After receiving the tips, officials began to search for him. On December 8, 2003, a group of local and federal law enforcement officials spotted Mr. Gruber driving a black Oldsmobile in Marietta, Oklahoma. When the officials attempted to stop him, he verbally refused to stop, and a high-speed chase ensued. At some point during the chase, Mr. Gruber abandoned his vehicle and began to run. FBI Special Agent Craig Overby then followed Mr. Gruber on foot. Mr.

Gruber ducked behind a nearby passenger car parked on the street in an attempt to hide himself from the pursuing agent. When Agent Overby caught up to Mr. Gruber, Agent Overby positioned himself on the opposite side of the car, with the vehicle separating them. Agent Overby identified himself with his gun drawn, told Mr. Gruber that he was under arrest, and repeatedly instructed Mr. Gruber to keep his hands held high. For both Agent Overby and Mr. Gruber, the other was visible from only the chest up. Mr.

Gruber initially complied with Agent Overby’s orders, keeping his hands up, but then he moved for cover, dropped his hands to his waist out of the agent’s line of sight, and bent down. As Mr. Gruber made this maneuver, Agent Overby fired his gun at Mr. Gruber, and the bullet hit him in the neck. Mr. Gruber fell to the ground on his stomach with his hands underneath him. Backup officers arrived on the scene and succeeded in restraining and arresting Mr. Gruber. Then, as Mr. Gruber recites in his brief, “when [Mr.

Gruber] was rolled over, a loaded .45 caliber semi-automatic pistol was found on the ground where his hands had been.” Aplt’s Br. at 7. Officers also found $9,746.00 in cash on Mr. Gruber. Among the confiscated money were eighteen of the twenty “bait bills” that had been taken in the Ardmore robbery. Subsequently, a grand jury indicted Mr.

Gruber in a multiple-count indictment, charging him with: Count one, being a felon in possession of a firearm and being a felon in possession of a firearm affecting interstate commerce, both in violation of 18 U.S.C. §§ 922(g)(1), 924(e); Count two, assaulting, resisting, opposing, impeding, intimidating, or interfering with a federal officer while using a dangerous weapon, in violation of 18 U.S.C. §§ 111(a) & (b), 1114; Count three, using and carrying a firearm during and in relation to, and possession of a firearm in furtherance of a violent federal felony (Count two), in violation of 18 U.S.C. § 924(c)(1); Count four, being a felon in possession of a firearm and being a felon in possession of a firearm affecting interstate commerce, both in violation of 18 U.S.C. §§ 922(g)(1), 924(e); Count five, armed bank robbery involving assault and jeopardy of life, in violation of 18 U.S.C. § 2113(a) & (d); Count six, using and carrying a firearm during and in relation to, and possession of a firearm in furtherance of a violent federal felony (Count five), in violation of 18 U.S.C. § 924(c)(1); and Count seven, possession and concealment of money stolen from a bank, in violation of 18 U.S.C. § 2113(c).

In stage one of a bifurcated jury trial, Mr. Gruber was found guilty of armed bank robbery involving assault and jeopardy of life, and using and carrying a firearm in relation to that violent felony (Counts five and six). During the second stage, he was found guilty of being a felon in possession of a firearm, assaulting, resisting, opposing, impeding, intimidating, or interfering with a federal officer while using a dangerous weapon, using or carrying a firearm in relation to that violent felony (Counts one, two, and three). The jury also found Mr.

Gruber guilty of count seven, but the district court granted the government’s motion to vacate this conviction. The jury found Mr. Gruber not guilty on count four. At sentencing, the district court found that Mr. Gruber was subject to enhanced punishment under 18 U.S.C. § 924(e), part of the Armed Career Criminal Act (“ACCA”). Under § 924(e), a “person who violates

section 922(

g) of this title [being a felon in possession of a firearm] and has three previous convictions ... for a violent felony ... shall be fined under this title and imprisoned not less than fifteen years.... ” Relying on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Mr.

Gruber objected to the determinations in the presentence report that he had been convicted of three “violent felonies” for purposes of the ACCA, claiming that such determinations were findings of fact that must be made by a jury beyond a reasonable doubt and not by the sentencing court by a preponderance of the evidence. Rec. vol. VIII, at 3. Concluding that Mr. Gruber had three prior convictions for violent felonies, the district court overruled his objection and sentenced Mr. Gruber to 687 months’ imprisonment applying 18 U.S.C. § 924(e). Id. at 4, 11.

The district court additionally imposed a term of 36 months’ supervised release on Count two, and a term of supervised release of 60 months for Counts one, three, five, and six, to be served concurrently. Id. vol. 1, doc. 44, at 4. (Judgment in a Criminal Case, dated Sep. 15, 2004). Finally, the district court ordered Mr. Gruber to pay the First National Bank restitution of $14,862.25. Id. at 6. II. DISCUSSION On appeal, Mr.

Gruber asserts that there was insufficient evidence to support a conviction for Count two of the indictment that alleged the violation of 18 U.S.C. § 111(b), which provides for an enhanced penalty where a defendant “uses a deadly or dangerous weapon” when assaulting, resisting, opposing, impeding, intimidating, or interfering with a federal officer. Specifically, he argues that there was no evidence of use because the complaining officer only saw Mr. Gruber’s hands drop from view as the two faced off on opposing sides of the chest-high vehicle, and did not actually see Mr. Gruber brandishing a weapon. Mr.

Gruber also challenges his sentence as being imposed in violation of his constitutional rights, as recently articulated by the Supreme Court in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). He contends that the district court committed constitutional error when it concluded by a preponderance of the evidence that his prior convictions were “violent felonies” under the ACCA. We address both these arguments below. A. Sufficiency of the Evidence We begin by examining Mr. Gruber’s claim that the government presented insufficient evidence to convict him under 18 U.S.C. § 111(b).

We review sufficiency of the evidence claims de novo. United States v. Hamilton, 413 F.3d 1138, 1143 (10th Cir.2005). In so doing, “we view the evidence in the light most favorable to the government and determine whether a reasonable jury could have found the defendant guilty of the crime beyond a reasonable doubt.” Id. (internal quotations omitted). During the second stage of the trial, the jury found Mr.

Gruber guilty of violating 18 U.S.C. § 111(a), assaulting, resisting, opposing, impeding, intimidating, or interfering with a federal officer, and also of violating 18 U.S.C. § 111(b), using a deadly weapon during and in relation to the underlying offense in § 111(a). The applicable statutes provide in relevant part: (

a) In general. — Whoever— (1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in

section 1114 of this title while engaged in or on account of the performance of official duties.... (

b) Enhanced penalty. — Whoever, in the commission of any acts described in subsection (

a) uses a deadly or dangerous weapon ... or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both. 18 U.S.C. § 111(a) & (b). The instructions to the jury explained the elements of this count to be: One: The defendant forcibly assaulted, resisted, opposed, impeded, intimidated or interfered with an officer or employee of the United States, Craig Overby; Two: At the time, Craig Overby was engaged in official duties. Three: The defendant used a deadly or dangerous weapon. Ree., vol. I, doc. 38, at 21. Mr. Gruber specifically takes issue with his conviction under subsection (

b) of the statute because of the jury’s finding that he “used” a dangerous weapon to assault, resist, oppose, impede, intimidate, or interfere with Agent Overby during their standoff. He contends that the fact that a gun was found on the ground under him after he was subdued “cannot relate back to create a fact that did not exist during the time of the offense.” Aplt’s Br. at 13. During trial, the government called a number of witnesses to show that Mr. Gruber “carried” a gun during a violent federal felony for purposes of 18 U.S.C. § 924(c). The government’s argument that Mr. Gruber violated

section 924(

c) was based on testimony of witnesses who stated that he had a gun in his possession during the bank robbery, testimony of friends who recalled that Mr. Gruber owned such a gun, and testimony of law enforcement officials who remembered that after subduing him, they found the gun on the ground underneath his body. The government did not, however, present any witnesses testifying that they saw Mr. Gruber “use” his gun during his face-to-face encounter with Agent Overby. Instead, when Agent Overby testified regarding the incident, he stated that he never actually saw Mr.

Gruber’s.45-caliber pistol while the two men stared at each other from opposite sides of the parked car. Agent Overby testified that when Mr. Gruber dropped his hands out of sight, he assumed that Mr. Gruber was reaching for a weapon of some sort, but the agent never actually saw it. After backup officers subdued Mr. Gruber, they located the pistol on the ground. This after-the-fact discovery may indeed have validated Agent Overby’s fear that Mr. Gruber was holding a weapon.

But it does not rise to the level of the “active employment” definition of use, which includes “brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire a firearm.” Bailey v. United States, 516 U.S. 137, 148, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In Bailey, the Court distinguished between the terms “carry” and “use” in the context of 18 U.S.C. § 924. Id.

The Court gave “use” its ordinary and natural meaning and limited the application of “use” to instances of active use, because otherwise no role would remain for the term “carry.” Bailey, 516 U.S. at 147, 116 S.Ct. 501. Moreover, the Court reasoned that “use” must mean something more than mere possession, since Congress frequently employed the term “possess” in gun-crime statutes and “[h]ad Congress intended possession alone to trigger liability ..., it easily could have so provided.” Id. at 143, 116 S.Ct. 501. Though Bailey does not deal with 18 U.S.C. § 111(b), the reasoning is persuasive.

The ordinary and natural meaning of “use” in § 111(

b) requires that a defendant must actively, in the Bailey sense, use the deadly weapon to qualify for § lll(b)’s enhanced penalties. In its brief, the government marshals no evidence to show that Mr. Gruber’s “use” of the gun was active or that the gun was disclosed. While the evidence would likely support a finding that Mr. Gruber “carried” the weapon during his standoff with the FBI agent, he did not brandish, strike with, fire or even attempt to fire the gun.

During oral argument (but not in its brief), the government cited a part of the transcript of the jury trial, where Agent Bob Horn testified that during an interview immediately after his arrest and while he was recovering from having been shot, Mr. Gruber admitted that “he [had] reached for his weapon” during the standoff. Rec. vol. VI, at 591 (Tr. of Jury Trial, dated Mar. 24, 2004). Agent Horn also testified that Mr. Gruber would not admit to reaching for the gun with the intent to shoot Agent Overby; instead, Agent Horn explained that Mr.

Gruber had insisted that “[fit’s possible that I was just reaching for the weapon to take it out and throw it on the ground and give myself up.” Id. at 593. Agent Horn also explained that Mr. Gruber never told him that he intended to “to pull [the] gun and intimidate or interfere with ... Agent Overby,” and that Mr. Gruber had stated that “he had no intention o[f] shooting anybody.” Id. at 600. This testimony is insufficient to establish active use, as required by the plain meaning

interpretation of the term “use,” provided by the Supreme Court in Bailey. We acknowledge that this is a fine distinction, but one that is significant, given the plain meaning of the term “use” as interpreted by the Supreme Court: “if the gun is not disclosed or mentioned by the offender, it is not actively employed, and it is not ‘used.’ ” Bailey, 516 U.S. at 149, 116 S.Ct. 501. Even applying the highly deferential standard of review to the government on appeal, there was insufficient evidence to support Mr.

Gruber’s conviction under § 111(b). “We have warned against sustaining a conviction based on mere suspicion or speculation: “While the jury may draw reasonable inferences from direct or circumstantial evidence, an inference must be more than speculation and conjecture to be reasonable, and caution must be taken that the conviction not be obtained by piling inference on inference.’ ” United States v. Dunmire, 403 F.3d 722, 724 (10th Cir.2005) (quoting United States v. Jones, 44 F.3d 860, 865 (10th Cir.1995)). Without any evidence or testimony, it is only speculation to say that Mr.

Gruber actually “used” the gun during the incident with Agent Overby. The circumstantial evidence presented cannot shed light on whether or not Mr. Gruber “used” the gun during the incident, especially in light of the fact that Agent Overby admitted to having never seen Mr. Gruber’s gun. While this evidence may be enough to prove that Mr. Gruber “carried” and “possessed” the gun, it does not prove “use,” an essential element of 18 U.S.C. § 111(b). B. Sentencing Enhancement We next examine Mr.

Gruber’s argument that the district court violated Booker by not submitting to the jury the question of whether his prior convictions constituted “violent felonies” under the ACCA, 18 U.S.C. § 924(e). A sentence enhancement under the ACCA is a legal issue, and, thus, we review it de novo. United States v. Moudy, 132 F.3d 618, 619 (10th Cir.1998). We agree with Mr. Gruber’s admission in his brief that “the deciding panel in the present case is bound by [United States v.] Moore, [401 F.3d 1220 (10th Cir.2005)] and the prior conviction exception imposed by the Supreme Court.” Aplt. Br. at 17. We note that Mr.

Gruber raises this issue as a preservation technique to possibly overturn Moore by an en banc decision from this court or a decision by the United States Supreme Court. Unless and until that happens, we are bound by the precedent of this court articulated in Moore. 401 F.3d at 1226 (“Neither the existence of prior convictions, nor their classification as ‘violent felonies,’ constitute facts that must be charged in an indictment and proven to a jury under a ‘beyond a reasonable doubt’ standard.”). III.

CONCLUSION Accordingly, we REVERSE the district court’s judgment on Count two and REMAND for re-sentencing in accordance with this opinion. We AFFIRM all other aspects of the district court’s judgment and its sentence. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. . At oral argument, Mr.

Gruber’s counsel expressly stated that he did not appeal the 18 U.S.C. § 924(

c) conviction, but then later, asked the panel nonetheless to consider reversing the § 924(

c) conviction if it reversed the predicate conviction under 18 U.S.C. § 111(b). Absent extraordinary circumstances, we will not consider arguments raised for the first time at oral argument. United States v. Lande, 40 F.3d 329, 331 n. 2 (10th Cir.1994).