Appeals from the United States District Court for the Northern District of Texas. D.C. DOCKET NUMBER CR4-92-027-A. JUDGE John H. McBryde
Before Johnson, Jolly, and Jones, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Steve Wayne Holloway and Edwin L. Hines were convicted for committing a series of armed robberies. Hines appeals only his sentence. Holloway appeals both his conviction and his sentence. We conclude that the district court did not err in sentencing Hines and therefore affirm his sentence. We further conclude, however, that the district court committed reversible error in denying Holloway's motion for severance of offenses--the robberies on the one hand and, on the other, the possession of a weapon two months after the robberies. We therefore reverse Holloway's convictions and remand for a new trial on all counts.
Between October 30, 1991 and December 9, 1991, five robberies were committed at food stores in the same area of Fort Worth, Texas. The first robbery involved three robbers. The last four involved only two robbers. During each robbery, the robbers ordered the store employees and others inside the store to lie down on the floor; they then took cash and cartons of cigarettes from the stores.
Almost two months after the last robbery occurred, officers arrested Holloway and Hines based on identifications made by victims of the robberies. When Holloway was arrested, officers found a firearm in his possession. The firearm was a .25 Raven, a small weapon that fits in one's back pocket.
On February 26, 1992, Holloway and Hines were indicted on charges of (1) conspiracy to interfere with commerce by robbery in violation of 18 U.S.C. § 1951; (2) aiding and abetting and interfering with commerce by robbery in violation of 18 U.S.C. § 1951; and (3) aiding and abetting and knowingly carrying and using a firearm during and in relation to the commission of a crime of violence in violation of 18 U.S.C. § 924(c) ("the robbery charges"). In addition, Holloway was indicted on an additional count as a felon who knowingly and unlawfully possessed a firearm in violation of 18 U.S.C. § 922(g)(1) ("the weapons charge").
Holloway moved for severance of the weapons charge, arguing that pursuant to Rule 14 of the Federal Rules of Criminal Procedure the joinder of this offense with his robbery offenses would prejudice him at trial. The district court, however, denied Holloway's motion for severance and thus Holloway proceeded to trial on the robbery charges as well as the weapons charge. After the government had presented its witnesses regarding the robbery charges, Holloway stipulated that he was a convicted felon and pled guilty to the weapons charge, a tactical move to prevent the government from presenting evidence of his previous criminal record, which was relevant only for that charge. The remaining counts therefore involved only the robberies. Holloway then testified in his own defense that he had not committed any of the robberies. During cross-examination, the government offered evidence of the weapons conviction to which Holloway had just pled guilty. The district court permitted the government to explore the conviction, stating that it shed light upon Holloway's "nature." The district court later stated--without reasons--that the conviction had "some relevance" under Rule 404(b) of the Federal Rules of Evidence. The jury convicted Holloway on five counts, but acquitted him on two. Hines, however, was convicted on all counts. Although the government had not adduced evidence at trial connecting Holloway to the robbery charges for which he was acquitted, at the sentencing hearing the district court allowed the government to present evidence of Hines's unsworn statements, given to police soon after his arrest, that Holloway had participated in that robbery. Under cross-examination, however, Hines testified that this assertion was not true; he had just told the police what they wanted to hear. Hines also testified that he had made the statement when he was suffering from heroin withdrawal and that he actually did not know whether Holloway had been involved in the robbery.
No other evidence connected Holloway to the robbery of which he was acquitted; the district court found, however, that Holloway had been involved in the robbery and considered it for sentencing purposes. Because of this factor, almost eleven years were added to Holloway's sentence. Furthermore, in sentencing Holloway and Hines pursuant to their convictions for violating 18 U.S.C. § 924(c), the district court enhanced their sentences based on a second conviction obtained in the same trial. Both Hines and Holloway appeal.
On appeal, Hines raises only one issue before this court, which is also one of the issues Holloway raises: Whether the district court erred in applying 18 U.S.C. § 924(c) in sentencing them.*fn1 In United States v. Deal, 954 F.2d 262 (5th Cir. 1992), we held that a "second or subsequent conviction" within the meaning of § 924(c) can result from the same indictment as the first conviction. Our opinion was recently affirmed in Deal v. United States, ___ U.S. ___, 113 S. Ct. 1993, 124 L. Ed. 2d 44 (1993). The district court therefore did not err in enhancing Hines's and Holloway's sentences based on two convictions under § 924(c) obtained pursuant to one indictment. Accordingly, Hines's sentence is affirmed. We now turn to address the issues raised by Holloway.