United States v. Bowen

Before MURPHY, MCKAY, and BALDOCK, Circuit Judges.

A grand jury issued a Second Superseding Indictment charging Defendant Aaron Bowen with (1) Aiding and Abetting the Retaliation Against a Witness, in violation of 18 U.S.C. §§ 1513(b)(2) & 2; (2) Conspiracy to Retaliate Against a Witness, in violation of 18 U.S.C. §§ 1513(b)(2) & 371; and (3) Aiding and Abetting the Possession and Brandishing of a Firearm in Furtherance of a Federal Crime of Violence, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) & 2. A petit jury convicted Bowen on all counts. On appeal, Bowen raises three points of error. First, Bowen argues the district court erred in ruling that the use of a firearm as a club constituted “brandishing” of a firearm, rather than mere “use” of a firearm, under the meaning of 18 U.S.C. § 924(c)(1)(A). Second, Bowen maintains that the evidence presented at trial was insufficient to support his conviction under 18 U.S.C. § 924(c)(1)(A). Third, Bowen requests we remand this case with instruction to the district court to conform its written judgment to the lower sentence the district court announced at sentencing. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We affirm Bowen’s conviction under 18 U.S.C. § 924(c)(1)(A), and remand for the district court to bring its written judgment into conformity with its previously imposed, oral sentence.