U.S. v. Castillo, 179 F.3d 321 (5th Cir. 1999), cert. granted - U.S. -,
United States v. Castillo
UNITED STATES COURT OF APPEALS
UNITED STATES OF AMERICA,
JAIME CASTILLO; BRAD EUGENE BRANCH; RENOS LENNY AVRAAM; GRAEME LEONARD
CRADDOCK; KEVIN A. WHITECLIFF,
Appeals from the United States District Court for the Western District of
June 22, 1999
Revised August 2, 1999
Before EMILIO M. GARZA, DeMOSS, and PARKER, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Jaime Castillo, Brad Eugene Branch, Renos Lenny Avraam, Graeme Leonard
Craddock, and Kevin A. Whitecliff ("the defendants") appeal their
convictions and sentences under 18 U.S.C. section 924(c)(1). We affirm.
The defendants are Branch Davidians convicted for, among other things,
violating 18 U.S.C. section 924(c)(1) based on their involvement in the events
that occurred at the Mount Carmel compound near Waco, Texas, in early 1993. At the time of the defendants'
conviction, section 924(c)(1) stated:
Whoever, during and in relation to any crime of violence or drug
trafficking crime (including a crime of violence or drug trafficking crime
which provides for an enhanced punishment if committed by the use of a deadly
or dangerous weapon or device) for which he may be prosecuted in a court of the
United States, uses or carries a firearm, shall, in addition to the punishment
provided for such crime or drug trafficking crime, be sentenced to imprisonment
for five years, . . . and if the firearm is a machinegun, or a destructive
device [e.g., a hand grenade], or is equipped with a firearm silencer or
muffler, to imprisonment for thirty years.
18 U.S.C. section 924(c)(1) (1994) (superseded).
Pursuant to section 924(c)(1), the district court sentenced Castillo,
Branch, Avraam, and Whitecliff to thirty years imprisonment and Craddock to ten
years imprisonment. Underlying the
sentences were findings of fact that the defendants had actually or
constructively possessed enhancing weapons (i.e., machine guns; destructive
devices; firearms equipped with silencers or mufflers) during and in relation
to a crime of violence-that is, a conspiracy to murder federal agents. With the
exception of Avraam, Craddock, and another co-defendant, Ruth Riddle, the
district court did not base its findings of fact on direct evidence of actual
possession. Rather, it attributed the possession of enhancing
weapons-specifically, machine guns, hand grenades, and firearms equipped with
silencers-to the defendants based on the "fortress theory" and the Pinkerton doctrine.
The defendants appealed. We affirmed on all issues but the sentences for the
section 924(c)(1) convictions. See United States v. Branch, 91 F.3d 699,
745 (5th Cir. 1996), cert. denied, 520 U.S. 1186, 117 S. Ct. 1466-67, 137 L.
Ed. 2d 681 (1997). In regard to the sentences, we noted that Bailey v.
United States, 516 U.S. 137, 146-50, 116 S. Ct. 501, 507-09, 133 L. Ed. 2D
472, ___ (1995), establishes that, in the context of section 924(c)(1),
"use" of a firearm means "active employment," and held that the district court's
finding of use based on evidence of actual or constructive possession did not
meet Bailey's definition of "use." See Branch, 91 F.3d at 740. At the
end of our discussion, we stated:
As we have explained, there is evidence from which it could be
found that machine-guns and other enhancing weapons [e.g., destructive devices,
firearms equipped with firearm silencers] were used by one or more members of
the conspiracy in the firefight of February 28 [, 1993]. The jury was not
required to do so and the district court only entered those findings then
required. With Bailey, the district court must take another look and enter its
findings regarding "active employment." Should the district court
find on remand that members of the conspiracy actively employed machine-guns,
it is free to reimpose the 30-year sentence. We vacate the defendants'
sentences on [the count of the indictment that charges a violation of section
924(c)(1)] . . . and remand for re-sentencing on that count.
We note that, on remand, the district court should consider
whether the defendants actively employed a weapon during and in relation to the
conspiracy to murder federal agents.
Id. at 740-41. In accordance with these comments, we entered a mandate that
stated, in part: "[The sentences for the section 924(c)(1) convictions]
are vacated and remanded for findings and re-sentencing."
On remand, the district court found that one or more persons involved in the
conspiracy to murder federal agents had actively employed machine guns and
other enhancing weapons in the firefight on February 28, 1993, and then applied
the Pinkerton doctrine to attribute the active employment of machine guns and
other enhancing weapons to the defendants on February 28, 1993. Alternatively,
it found that Branch and Avraam each had used (i.e., actively employed) and
carried a machine gun on February 28, 1993, and that Castillo and Craddock each
had carried a hand grenade on April 19, 1993. The district court re-sentenced
Castillo, Branch, Avraam, and Whitecliff to thirty years imprisonment and
Craddock to ten years imprisonment. 
The defendants timely appealed.
This appeal involves the following contentions: (1) we erred in holding
that, in the context of section 924(c)(1), the type of firearm used or carried
during and in relation to a crime of violence or a drug trafficking crime is a
sentencing enhancement, and not an element of the offense; (2) we erred in
holding that a conviction for violating section 924(c)(1) stands despite the
absence of a conviction for the predicate offense; (3) the district court's
jury instruction on the "use" of a firearm was improper; (4) the
district court's application of the Pinkerton doctrine was improper; (5) the
district court clearly erred in finding that Branch and Avraam each had used
and carried a machine gun on February 28, 1993; (6) the district court clearly
erred in finding that Castillo and Craddock each had carried a hand grenade on
April 19, 1993; (7) the district court clearly erred in considering conduct
other than that which occurred on February 28, 1993, in re-sentencing Castillo
and Craddock; and (8) the district court applied the wrong standard of proof in
sentencing the defendants. The
Government asserts that either the law-of-the-case doctrine or the waiver
doctrine precludes the first, second, third, fourth, and eighth contentions.
The law-of-the-case doctrine "posits that when a court decides upon a
rule of law, that decision should continue to govern the same issues in
subsequent stages in the same case." Arizona v. California, 460
U.S. 605, 618, 103 S. Ct. 1382, 1391, 75 L. Ed. 2 318, ___ (1983). Based on
this general principle, we have developed specific rules about how our earlier
decisions affect later proceedings and cases. See Crocker v. Piedmont
Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995).
The law-of-the-case doctrine follows from the "sound policy that when
an issue is once litigated and decided, that should be the end of the
matter." United States v. United States Smelting Ref. & Mining
Co., 339 U.S. 186, 198, 70 S. Ct. 537, 544, 94 L. Ed. 750, ___ (1950). It is an
exercise of judicial discretion, not a limit on judicial power. See
Messinger v. Anderson, 225 U.S. 436, 444, 32 S. Ct. 739, 740, 56 L. Ed.
1152, ___ (1912).
The waiver doctrine bars consideration of an issue that a party could have
raised in an earlier appeal in the case. See Brooks v. United States,
757 F.2d 734, 739 (5th Cir. 1985). It "serves judicial economy by forcing
parties to raise issues whose resolution might spare the court and parties
later rounds of remands and appeals." Hartman v. Duffey, 88 F.3d
1232, 1236 (D.C. Cir. 1996), cert. denied, 520 U.S. 1240, 117 S. Ct. 1844, 137
L. Ed. 2d 1048 (1997). The waiver doctrine differs from the law-of-the-case
doctrine in that it arises as a consequence of a party's inaction, not as a
consequence of a decision on our part. See Crocker, 49 F.3d at 739.
Only plain error justifies departure from the waiver doctrine. See id. at
740; cf. McCann v. Texas City Ref., Inc., 984 F.2d 667, 673 (5th Cir.
1993) ("It is the unwavering rule in this Circuit that issues raised for
the first time on appeal are reviewed only for plain error."). We find
plain error when (1) there is an error (2) that is clear and obvious and (3)
that affects substantial rights. See United States v. Olano, 507 U.S.
725, 732, 734, 113 S. Ct. 1770, 1776, 1777, 123 L. Ed. 2d 508, ___ (1993). In
most cases, the party asserting plain error bears the burden of making a
specific showing of prejudice (i.e., the error affected the outcome of the
district court proceedings) to satisfy the affects substantial rights prong.
See id. at 735, 113 S. Ct. at 1778, 123 L. Ed. 2d at ___. Even if we find plain
error, we reverse only if the error seriously affects the fairness, integrity,
or public reputation of judicial proceedings. See id. at 732, 113 S. Ct. at
1776, 123 L. Ed. 2d at ___.
We now consider the applicability of the law-of-the-case doctrine and the
waiver doctrine to this appeal.
The defendants argue that, in the context of section 924(c)(1), the type of
firearm used or carried during and in relation to a crime of violence or a drug
trafficking crime is an element of the offense. In disposing of the defendants'
first appeal, we rejected this contention, and found that the type of firearm
is a sentencing enhancement. See
Branch, 91 F.3d at 740.
The defendants' argument implicates the law-of-the-case rule that when we
resolve a legal issue and remand to the district court, our decision binds
subsequent proceedings in the district court and on later appeal. See White
v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967). The rule covers issues
that we have decided explicitly and by necessary implication. See Terrell v.
Household Goods Carriers' Bureau, 494 F.2d 16, 19 (5th Cir. 1974). It
furthers judicial efficiency and discourages panel shopping at the circuit
level. See Lehrman v. Gulf Oil Corp., 500 F.2d 659, 662 (5th Cir. 1974).
We depart from the rule only if (1) the evidence presented at trial following
remand is substantially different, (2) a controlling authority has made a
contrary decision of law since our earlier decision, or (3) our earlier
decision was clearly erroneous and would work a manifest injustice. See White,
377 F.2d at 431-32. The party seeking a reversal of our earlier decision bears
the burden of showing the applicability of one of these exceptions. See
Morrow v. Dillard, 580 F.2d 1284, 1292 (5th Cir. 1978).
The defendants maintain that the law-of-the-case rule is inapplicable here
because our prior finding that the type of firearm is a sentencing enhancement,
and not an element of the offense, was dictum. We agree with the assumption
underlying this assertion that the rule reaches earlier decisions but not
earlier dicta. See Society of the
Roman Catholic Churches of the Diocese of Lafayette, Inc. v. Interstate Fire
& Cas. Co., 126 F.3d 727, 735 (5th Cir. 1997); see also In re United
States, 60 F.3d 729, 731 (11th Cir. 1995) (per curiam). However, we
disagree that our prior finding was dictum. As the Government says in its
brief, our prior finding "was clearly necessary and essential to the
decision to remand the case for further findings, for there would have been no
need for further findings if the type of weapon was not a sentencing
The defendants also attempt to persuade us to discard the law-of-the-case
rule. However, they are unsuccessful. We reject the insinuation that our
refusal to depart from the rule will result in manifest injustice because
Supreme Court review is no longer available to the defendants as a result of
the denial of their petition for a writ of certiorari on our prior decision.
See Forsyth v. Hammond, 166 U.S. 506, 513, 17 S. Ct. 665, 668, 41 L. Ed.
1095, ___ (1897) (characterizing the discretion to grant or deny a petition for
a writ of certiorari as "comprehensive and unlimited"). We also find
unavailing the various arguments suggesting that our prior decision was clearly
erroneous-that is, was "dead wrong." City Pub. Serv. Bd. v.
General Elec. Co., 935 F.2d 78, 82 (5th Cir. 1991) (following Parts &
Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th
Cir. 1988)). While most of the arguments merit no discussion, we wish to
respond to two of them. First, our prior decision need not be reversed because
it conflicts with the holdings of several other circuits. See In re Korean
Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1183 n.22 (D.C. Cir.
1987) (D. H. Ginsburg, J., concurring) (discussing the law-of-the-case
doctrine), aff'd, 490 U.S. 122, 109 S. Ct. 1676, 104 L. Ed. 2d 113 (1989).
Second, our prior decision does not contravene United States v.
Almendarez-Torres, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2D 350 (1998),
and Jones v. United States, ___ U.S. ___, 119 S. Ct. 1215, ___ L. Ed. 2d
___ (1999), two intervening Supreme Court decisions. It accords with the
directive in Almendarez-Torres, 523 U.S. At ___, 118 S. Ct. at 1223, 140 L. Ed.
2d at ___, to look at "language, structure, subject matter, context, and
history" in determining whether or not Congress intended for a statute to
define a separate crime or to set forth a separate sentencing factor. See
Branch, 91 F.3d at 738-40 (examining section 924(c)(1)'s text, structure, and
legislative history). Our prior decision also does not conflict with Jones.
This case and Jones differ in a critical way. In Jones, the legislative history
contained conflicting indications of whether Congress intended for 18 U.S.C.
section 2119, the statute at issue, to lay out three distinct offenses or a
single crime with three maximum penalties. See Jones, ___ U.S. at ___, 119 S.
Ct. at 1221, ___ L. Ed. 2d at ___. In contrast, the legislative history of
section 924(c)(1) discloses that Congress consistently referred to the
enhancing weapons clause as a penalty and never indicated that it intended to
create a new, separate offense for machine guns. See Branch, 91 F.3d at 739.
Accordingly, we decline to reconsider our prior decision that the type of
firearm used or carried is a sentencing enhancement, and not an element of the
The defendants further assert that the doctrine of constitutional doubt and the rule of lenity require that the type of firearm be
deemed an element of the offense. This contention implicates the waiver
doctrine. The defendants did not raise the doctrine of constitutional doubt or
the rule of lenity in their first appeal. Nor have they shown that our refusal
to consider these issues now will affect their substantial rights. See Olano,
507 U.S. at 735, 113 S. Ct. at 1778, 123 L. Ed. 2d at ___. Accordingly, the
defendants have waived their challenge to our prior decision.
The defendants maintain that, in disposing of their first appeal, we were
wrong to let their convictions for violating section 924(c)(1) stand in the
face of their acquittals on the predicate crime of conspiracy to murder federal
agents. We based our decision to leave the convictions intact on several cases
in which we had held that a conviction for the predicate offense is unnecessary
to convict under section 924(c)(1). See United States v. Ruiz, 986 F.2d 905,
911 (5th Cir. 1993); United States v. Munoz-Fabela, 896 F.2d 908, 910-11
(5th Cir. 1990). The defendants argue that we should have ignored those
cases and followed a more recent decision, United States v. Lucien, 61 F.3d
366, 377 (5th Cir. 1995). They claim that Lucien contradicts the cases on
which we relied and supports their argument.``
Even if Lucien conflicts with the cases on which we relied and supports the
defendants' argument, we are unmoved. The law-of-the-case doctrine's progeny
includes the rule that we must follow the first-in-time decision when faced
with conflicting panel decisions. See In re Caddo Parish-Villas S., Ltd., No.
98-10380, 1999 WL 239395, at *5 (5th Cir. May 10, 1999); United States v.
Iwegbu, 6 F.3d 272, 274 n.1 (5th Cir. 1993); 18 Charles Alan Wright et al.,
Federal Practice and Procedure section 4478 (2d ed. 1981). Therefore, we must
adhere to our earliest decision on whether or not a conviction for the
predicate offense must occur to convict under section 924(c)(1). Our earliest
decision rejects the position that the defendants take on the issue. See Munoz-Fabela, 896 F.2d at 910-11.
Accordingly, we decline to reconsider our earlier holding that the absence of a
finding of guilt on the predicate offense does not negate the defendants'
convictions for violating section 924(c)(1).
The defendants assert that we should overturn their convictions for
violating section 924(c)(1) because the district court's jury instruction on
"use" failed to comport with Bailey. This argument implicates the
waiver doctrine. The defendants could have raised their contention in their
first appeal. Furthermore, they have not shown that district court's erroneous
jury instruction affected their substantial rights and therefore amounted to
plain error. See Olano, 507 U.S. at 735, 113 S. Ct. at 1778, 123 L. Ed. 2d at
___. In this regard, we previously have held that the evidence was sufficient
to convict the defendants for using firearms in the sense contemplated by
See Branch, 91 F.3d at 735. Accordingly, the defendants have waived their
challenge to the district court's jury instruction on "use."
The defendants criticize the district court for applying the Pinkerton
doctrine at re-sentencing for the purpose of determining the type of firearms
that they had used. In our earlier decision, we stated:
[T]here is evidence from which it could be found that machine-guns
and other enhancing weapons [e.g., destructive devices, firearms equipped with
silencers] were used by one or more members of the conspiracy in the firefight
of February 28[, 1993]. . . . Should the district court find on remand that
members of the conspiracy actively employed machine-guns, it is free to
reimpose the 30-year sentence.
Id. at 740-41. The district court understood these comments to mean that on
remand it was only to make findings on the active employment of machine guns,
and that it was not to revisit the applicability of the Pinkerton doctrine.
The defendants' criticism implicates the mandate rule, a corollary of the
law-of-the-case doctrine. See United States v. Becerra, 155 F.3d 740,
753 (5th Cir. 1998). The mandate rule requires a district court on remand to
effect our mandate and to do nothing else. See id.
We hold that the district court's decision not to reconsider the
applicability of the Pinkerton doctrine on remand was consistent with our
mandate. Nor do we see any reason to depart from the mandate rule in this case.
The defendants claim that the Pinkerton doctrine was unavailable to the
district court because the jury did not convict them of the predicate offense
to the section 924(c)(1) charge. This argument ignores our earlier holding that
the absence of a guilty verdict on the predicate offense does not invalidate a
conviction for violating section 924(c)(1). See Branch, 91 F.3d at 732-33. The
defendants also argue that the Pinkerton doctrine plays no role in determining
a sentence for a violation of section 924(c)(1) because section 1B1.3 of the
Sentencing Guidelines, an analogue to the Pinkerton doctrine, is inapplicable
to section 2K2.4, which covers section 924(c)(1). However, we have endorsed the
use of the Pinkerton doctrine to determine the sentence of a co-conspirator
under 21 U.S.C. section 841(b), a statutory provision analogous to section
924(c)(1). See United States v.
Ruiz, 43 F.3d 985, 992 (5th Cir. 1995). For us to depart from the mandate
rule, the defendants must show that we previously were "dead wrong."
City Public Serv. Bd., 935 F.2d at 82. They have not done so.
Accordingly, we decline to reconsider our prior approval of the district
court's application of the Pinkerton doctrine.
Finally, the defendants claim that the district court erred in making
findings of fact for purposes of sentencing based on the preponderance of the
evidence. They assert that the district court was obliged to apply a higher
evidentiary standard because the increase in their sentences-from 5 to 30
years-the consequence of the district court's findings of fact on active
employment of machine guns was dramatic and devastating. In support of their
argument, they point to the following observation that we made in United
States v. Mergerson, 4 F.3d 337, 343 (5th Cir. 1993):
We recognize a growing number of cases decided by courts in other
circuits in which a higher standard of proof has been suggested or required
when a finding of a particular fact relevant to sentencing dramatically alters
the sentencing options of the court to the disadvantage of the defendant. We
also recognize dicta in the Supreme Court's decision in McMillan v.
Pennsylvania, 477 U.S. 79, 106 S. Ct.2411, 91 L. Ed. 2d 67 (1986), to the
The defendants' contention implicates the waiver doctrine. The district
court initially imposed the defendants' sentences based on findings of fact
made by a preponderance of the evidence. The defendants therefore could have
attacked the correctness of the standard of proof in their first appeal.
Moreover, the district court's error, if any, was not plain in light of several
circumstances. See Olano, 507 U.S. at 734, 113 S. Ct. at 1777, 123 L. Ed. 2d at
___ ("'Plain' is synonymous with 'clear' or equivalently,
'obvious.'"). We have noted that "[i]t is well-established that the
preponderance of evidence standard is the applicable standard for sentencing
purposes," United States v. Gaytan, 74 F.3d 545, 558 (5th Cir.
1996), and have expressed "reluctan[ce] to part from the preponderance of
evidence standard in a non-capital case," United States v. Milsaps,
157 F.3d 989, 995 (5th Cir. 1998). Additionally, another circuit court has held
that an increase in a sentence comparable to the increase in the sentences in
this case is an insufficient reason to resort to a higher standard of proof.
See United States v. Porter, 23 F.3d 1274, 1277-78 (7th Cir. 1994)
(citing an earlier case in which the sentence jumped from a Sentencing
Guideline range of 33 to 41 months to consecutive 20-year terms). Accordingly,
the defendants have waived their challenge to the standard of proof that the
district court applied in sentencing them. VIII We agree with the Government
that the law-of-the-case doctrine and the waiver doctrine determine the
disposition of this appeal. Accordingly, we affirm.
1. For a description of the events that
occurred at the Mount Carmel compound in early 1993, see United States v.
Branch, 91 F.3d 699, 709-10 (5th Cir. 1996), cert. denied, 520 U.S. 1185, 117
S. Ct. 1466-67, 137 L. Ed. 2d 681 (1997).
2. In the case of Craddock, the district
court found that he was subject to a thirty-year sentence pursuant to section
924(c)(1), and then adjusted his sentence downward to ten years pursuant to
section 5K2.16 of the Sentencing Guidelines, which allows for a downward
departure when the defendant voluntarily discloses to authorities the existence
of the offense and accepts responsibility for the offense prior to the
discovery of the offense, if the offense was unlikely to have been discovered
otherwise. See USSG section 5K2.16 (1993).
3. The "fortress theory"
provides that a defendant may be convicted under section 924(c)(1) "where
large numbers of firearms were readily available in strategic locations near
large quantities of drugs and money." United States v. Wilson, 884
F.2d 174, 177 (5th Cir. 1989).
4. The Pinkerton doctrine, which finds its
roots in Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L.
Ed. 1489 (1946), provides that "[a] party to a continuing conspiracy may
be responsible for a substantive offense committed by a coconspirator pursuant
to and in furtherance of the conspiracy, even if that party does not
participate in the substantive offense or have any knowledge of it."
United States v. Elwood, 993 F.2d 1146, 1151 (5th Cir. 1993) (quotations
omitted) (describing the Pinkerton doctrine).
5. Bailey gives as examples of active
employment "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, 508, 133 L. Ed. 2d 472, ___
6. Having again found Craddock subject to
a thirty-year sentence pursuant to section 924(c)(1), the district court left
undisturbed its previous decision to adjust Craddock's sentence downward to ten
7. For the sake of brevity, our subsequent
discussion will attribute each argument to all of the defendants, regardless of
whether or not all of the defendants actually have advanced it.
8. The Government claims that Congress
amended section 924(c)(1) after the defendants were convicted and sentenced to
make clear that the type of firearm is a sentencing enhancement. See 18 U.S.C.
9. Dictum is "language unnecessary to
a decision, [a] ruling on an issue not raised, or [the] opinion of a judge
which does not embody the resolution or determination of the court, and [which
is] made without argument or full consideration of the point." Lawson
v. United States, 176 F.2d 49, 51 (D.C. Cir 1949) (internal quotations
10. The doctrine of constitutional doubt
provides that "where an otherwise acceptable construction of a statute
would raise serious constitutional problems, [a court] . . . will construe the
statute to avoid such problems unless such construction is plainly contrary to
the intent of Congress." New York v. United States, 505 U.S. 144,
170, 112 S. Ct. 2408, 2425, 120 L. Ed. 2D 120, ___ (1992) (internal quotations
11. The rule of lenity provides that
" ambiguity concerning the ambit of criminal statutes should be resolved
in favor of lenity." United States v. Bass, 404 U.S. 336, 347, 92
S. Ct. 515, 522, 30 L. Ed. 2d 488, ___ (1971) (internal quotations
12. In denying the defendants' petition
for rehearing in the first appeal, we held that "Lucien does not control
this case." Branch, 91 F.3d at 752 (per curiam).
13. The Supreme Court recently indicated
agreement with our view that a finding of guilt on the predicate offense is
unnecessary to convict under section 924(c)(1). In United States v.
Rodriguez-Moreno, ___ U.S. ___, 119 S. Ct. 1239, ___ L. Ed. 2d___,___
(1999), it identified the following as the elements of a section 924(c)(1)
offense: (1) using or carrying a firearm; (2) the commission of all acts
necessary to be subject to punishment for a crime of violence or a drug
trafficking offense; and (3) using or carrying a firearm during and in relation
to a crime of violence or a drug trafficking offense. See id. at ___, 119 S.
Ct. at 1243, ___ L. Ed. 2d at ___. The Court's rendition of the elements
provided that a defendant must be found to have committed the elements of the
predicate offense, not that he must have been found guilty of the predicate
offense. As such, it resonated with our earlier holding that "it is only
the fact of the offense, and not the conviction, that is need[ed] to establish
the required predicate." Branch, 91 F.3d at 733 (internal quotations
14. Although the issue before us is
whether or not the erroneous instruction on "use" was plain error, we
find our approach toward erroneous jury instructions in the harmless error
context instructive. See United States v. Olano, 507 U.S. 725, 734, 113
S. Ct. 1770, 1778, 123 L. Ed. 2d 508, ___ (1993) (explaining how harmless error
analysis and plain error analysis are alike and different). When considering
the matter of harmless error, we have stated that an erroneous jury instruction
on an element of the offense is non-prejudicial beyond a reasonable doubt when,
given the factual circumstances of the case, the jury could not have found the
defendant guilty without making the proper factual finding as to that element.
See United States v. Saks, 964 F.2d 1514, 1521 (5th Cir. 1992).
15. Section 841(b) sets out sentences for
those defendants convicted for drug offenses under 21 U.S.C. section 841(a).
See 21 U.S.C. section 841(b). Under it, sentences are based on the quantity of
drugs involved in the offense. See id. In United States v. Ruiz, 43 F.3d
985, 992 (5th Cir. 1995), we held "that the standards for determining the
quantity of drugs involved in a conspiracy for guideline sentencing purposes
apply in determining whether to impose the statutory minimums prescribed in
16. Because we do not reconsider our prior
approval of the district court's application of the Pinkerton doctrine, we need
not resolve the following contentions of the defendants: (1) the district court
clearly erred in finding that Branch and Avraam each had used a machine gun on
February 28, 1993; (2) the district court clearly erred in finding that
Castillo and Craddock each had carried a hand grenade on April 19, 1993; and
(3) the district court clearly erred in considering conduct other than that
which occurred on February 28, 1993, in re-sentencing Castillo and
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