## F I L E D United States Court of Appeals Tenth Circuit 

### APR 3 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. AVRAM L. GOTTLIEB, aka David Gottlieb, Defendant-Appellant. No. 96-3278

Appeal from the United States District Court

for the District of Kansas (D.C. No. 95-CR-40023-01)

Jill M. Wichlens, Assistant Federal Public Defender , Denver, Colorado (Michael G. Katz, Federal Public Defender, Denver, Colorado, with her on the brief), for Appellant. Gregory G. Hough, Assistant United States Attorney, Topeka, Kansas (Jackie N. Williams, United States Attorney, Topeka, Kansas, w ith him on the brief) for Appellee.

Before PORFILIO, BRORBY, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.-2- I. BACKGROUND Defendant Avram Gottlieb pleaded guilty to bank rob bery, in violation of 18 U.S.C. § 2113(a). Prior to Gottlieb’s plea, the government filed an information seeking enhancement of his sentence pur suant to 18 U.S.C. § 3559(c), popularly known as the “Three Strikes” statute. Co ngress enacted the Three Strikes statute in 1994 as part of a comprehensive crime control bill. See Violent Crime Control & Law Enforcement Act of 1994, Pub. L . No. 103-322, § 70001, 108 Stat. 1796, 1982 (codified at 18 U.S.C. § 3559( c)). The statute requires the district court to sentence to life in prison any pe rson who is convicted in federal court of a “serious violent felony” if that person has previously been convicted in state or federal court of two or more “serious viol ent felonies.” 18 U.S.C. § 3559(c)(1). Robbery is generally considered a “s erious violent felony” for purposes of the Three Strikes statute. See id. § 3559(c)(2)(F). Gottlieb had two previous convictions for “serious violent felonies.” By pleading guilty to robbery, his third “strike,” Gottlieb became subject to the Three Strikes statute. One of the two prior convictions the government relied on in seeking the sentence enhancement was a 1987 federal conviction for conspiracy to obstruct and affect commerce by robbery, in violati on of 18 U.S.C. § 1951. At the sentencing hearing, Gottlieb contended that thi s offense, although considered a “serious violent felony,” should not be counted a s a “strike” because it1 Gottlieb does not challenge the other conviction th e government relied on

in seeking the sentence enhancement. -3- constitutes a “nonqualifying felony” under § 3559(c )(3)(A) of the Three Strikes statute. The district court rejected Gottlieb’s ar gument and applied the Three Strikes statute to sentence Gottlieb to life in pri son. On appeal, Gottlieb argues that (1) the district co urt erred in sentencing him under the Three Strikes statute because his 198 7 offense constitutes a “nonqualifying felony” and (2) the district court e rred in failing to make his restitution obligation joint and several with that of a codefendant. This court agrees that Gottlieb should not have been sentencedunder the Three Strikes statute. We therefore vacate Gottlieb’s sentence a nd remand to the district court for resentencing. We further remand to the distric t court for clarification of the restitution order.
II. DISCUSSION
A. Three Strikes Statute Gottlieb contends his 1987 conviction 1 for conspiracy to commit robbery constitutes a “nonqualifying felony” under 18 U.S.C . § 3559(c)(3)(A), thereby making the Three Strikes statute inapplicable. Sec tion 3559(c)(3)(A) provides:

Robbery, an attempt, conspiracy, or solicitation to commit robbery . . . shall not serve as a basis for senten cing under this subsection if the defendant establishes by clear an d convincing evidence that--2 The government does not contend that a “dangerous w eapon” other than a

firearm was involved in the 1987 offense. Therefor e, we limit our discussion under § 3559(c)(3)(A)(i) to whether the 1987 offens e involved the use or threat of use of a firearm. -4-

(i) no firearm or other dangerous weapon was used i n the offense and no threat of use of a firearm or other dangerous weapon was involved in the offense; and (ii) the offense did not result in death or seriou s bodily injury . . . to any person. 18 U.S.C. § 3559(c)(3)(A). The government concedes that the 1987 offense did not result in death or serious bodily injury and th at Gottlieb therefore satisfied the second prong of § 3559(c)(3)(A). The government an d Gottlieb disagree, however, whether Gottlieb has met his burden of sat isfying the first prong of that section, by showing the 1987 offense did not involv e the “use” or “threat of use” of a firearm. 2 1. Background of 1987 Offense At the sentencing hearing, the district court began its inquiry into whether the Three Strikes statute applied by asking the gov ernment if it had any testimony or presentation on the issue. The government respo nded by introducing certified copies of the judgments from the 1987 conviction an d the other conviction on which it relied. The government then called two wi tnesses to testify as to the facts of the underlying convictions.3 Agent Novotny did not state who made the phone call s. -5- With respect to the 1987 conviction, the governmentcalled FBI Agent Robert Novotny, who was the case agent assigned to investigate the offense. According to Agent Novotny, an informant told the F BI in 1986 that Robert Colley, a Missouri prison inmate, was planning to abduct his ex-wife and the teenage son of a Kansas City bank executive. Becau se he was incarcerated, Colley needed assistance to carry out the scheme. Two undercover agents posed as persons willing to a ssist in the scheme. The agents were to be in contact with a person on t he East Coast, who turned out to be Gottlieb. After several phone calls between the agents and Gottlieb, Gottlieb agreed to fly to Kansas City to meet with the agents. Gottlieb asked the agents to provide him with a firearm when he got to Kansas City because he would be unable to bring one with him on the airpla ne. According to Agent Novotny, Gottlieb “wanted a weapon available for hi m. . . . [T]hey wanted to show, as I understand it, a true threat to the ex-w ife and to get the extortion completed against the bank president, against the b ank officer.” Agent Novotny further testified that Gottlieb trave led to Kansas City and met with the agents at a hotel, where they discusse d the plan and made phone calls to the bank to determine if the executive’s s on was at home. 3 The agents then took Gottlieb to their car, which was in the h otel parking lot. In the trunk of-6-

the car, the agents had placed a gym bag containing an inoperative firearm. In addition to the two undercover agents, other agents , including Novotny, were in the vicinity. When Gottlieb reached for the firear m, but before touching it, the agents arrested him. Gottlieb was wearing a bulletproof vest when he was arrested. After Agent Novotny testified and the government an nounced that it had no further evidence, Gottlieb took the stand in his ow n defense. He testified that his only role in the offense was to transport the ranso m money to a bank; he was not to be involved in the actual kidnapping. Gottlieb further testified that, upon arriving in Kansas City, he met with the two underc over agents at a hotel and discussed the plan. As the three were walking out of the hotel, there was a discussion about the fact that Gottlieb would be carrying a substantial amount of money. According to Gottlieb, the agents then offe red him a firearm. Gottlieb testified: “I was like, whatever. I’m going to be on an airplane in three hours . . . so whatever. . . . I couldn’t have taken it to the airport anyway. I would have had to throw it away immediately.” Gottlieb testified that one of the agents then opened the trunk of the car, said there was a gun i n the trunk, and pointed at the trunk. When Gottlieb turned to look, he was arrest ed. The government offered no rebuttal evidence. The g overnment argued that Gottlieb had not met his burden of proving the 1987 offense was a “nonqualifying4 When announcing his proposed findings of fact and t entative sentence, the

district court judge stated that the “Guideline pro vides life imprisonment.” According to the Sentencing Guidelines, however, Go ttlieb was subject to imprisonment for a term of 84 to 105 months. See U.S.S.G. Ch. 5, Pt. A. -7- felony,” stating: “[T]here is just absolutely no way that based upon the record in this case the Court could support that finding.” G ottlieb, on the other hand, urged the court to find that the 1987 offense constitutes a “nonqualifying felony” because no firearm was involved in the offense. The district court ruled from the bench, first find ing generally that the government’s testimony was more believable than Gottlieb’s. The court then concluded that “the defendant has failed to establi sh by clear and convincing evidence that his prior offenses constitute non-qua lifying felonies under 18 U.S.C. § 3559(c)(3)([A]). The defendant is, theref ore, subject to mandatory life imprisonment.” The court gave no further explanati on of its ruling. The court next found that under the Sentencing Guid elines, Gottlieb’s total offense level was 25 and his criminal history categ ory was IV. Thus, based on the Sentencing Guidelines, Gottlieb was subject to impr isonment for a term of 84 to 105 months (7 to 8.75 years). 4 See U.S.S.G. Ch. 5, Pt. A. The court, however, sentenced him to life imprisonment.-8-

2. Application of the Three Strikes Statute To satisfy the first prong of § 3559(c)(3)(A), Gott lieb must show by clear and convincing evidence that (1) no firearm was “us ed” in the 1987 offense and (2) no “threat of use” of a firearm was involved in the offense. 18 U.S.C. § 3559(c)(3)(A)(i). This court reviews de novo the district court’s imposition of a sentence enhancement pursuant to the Three Strikes statute. See United States v.
Romero , 122 F.3d 1334, 1342 (10th Cir. 1997), petition for cert. filed (U.S. Nov. 18, 1997) (No. 97-6863).
a. “Use” of a Firearm The Three Strikes statute does not define the word “used” for purposes of determining under § 3559(c)(3)(A)(i) whether a fire arm was “used” in the offense. No courts have yet construed the word in the specific context of the Three Strikes statute. Gottlieb, however, argues t he Supreme Court’s construction of “use” in the context of 18 U.S.C. § 924(c) provides a helpful analogy. Section 924(c) establishes penalties for a person w ho “during and in relation to any crime of violence or drug trafficki ng crime . . . uses or carries a firearm.” 18 U.S.C. § 924(c)(1) (emphasis added). The Supreme Court has held that “§ 924(c)(1) requires evidence sufficient to s how an active employmentof the firearm by the defendant, a use that makes the fire arm an operative factor in5 The government asserts the BaileyCourt’s analysis of “use” was context

specific as to § 924(c) and should not be extended to § 3559(c)(3)(A)(i). The government does not explain, however, why the Court ’s approach in defining “use” for purposes of § 924(c) should not inform ou r analysis. Although the government does point out that § 924(c) defines a s ubstantive offense whereas § 3559(c) provides for a sentence enhancement, the government does not adequately explain why that distinction should affe ct our analysis. Certainly, Congress does not necessarily speak in two different languages depending on whether it is addressing a primary punishment or anenhancement. Importantly, the government also fails to offer an alternative d efinition of “use.” -9- relation to the predicate offense.” Bailey v. United States , 116 S. Ct. 501, 505 (1995). Elaborating on its holding, the Court note d that “active employment” includes “brandishing, displaying, bartering, strik ing with, and most obviously, firing or attempting to fire, a firearm.” Id. at 508. The term does not, however, encompass mere possession or storage of a firearm. See id. The intent to use a firearm, without more, also does not constitute act ive employment. See id. at 509. In reaching its conclusion, the Court relied on th e “‘ordinary or natural’” meaning of the word “use,” “a meaning variously def ined as ‘[t]o convert to one’s service,’ ‘to employ,’ ‘to avail oneself of,’ and ‘ to carry out a purpose or action by means of.’” Id. at 506 (alteration in original) (quoting Smith v. United States , 508 U.S. 223, 228-29 (1993) (internal quotations om itted)). Application of principles of statutory constructionindicates the Bailey Court’s definition of “use” should also be applied to determine under § 3559(c)(3)(A)(i) whether a firearm was “used” in the offense. 5 In accordance6 The Ninth Circuit has apparently rejected the analo gy to § 924(c). In

United States v. Morrison , 113 F.3d 1020 (9th Cir.), cert. denied, 118 S. Ct. 583 -10- with the first principle of statutory construction, this court begins with the plain language of the statute. See id. As the BaileyCourt recognized, the plain meaning of the word “use” implies “action and imple mentation.” Id. Another principle of statutory construction, interp reting a word in light of its “placement and purpose in the statutory scheme, ” id. , also suggests employment of the § 924(c) meaning. As Gottlieb po ints out, applying the same definition of “use” in § 3559(c)(3)(A)(i) as that e mployed in § 924(c) is particularly appropriate because the Three Strikes statute specifically refers to § 924(c). That reference appears in the definition section of § 3559(c), where the term “firearms use,” which is itself considered a “ serious violent felony,” is defined as an offense that has as its elements those describedin section 924(c) or 929(a), if the firearm was brandished, discharge d, or otherwise used as a weapon and the crime of violence or drug trafficking crime during and [in] relation to which the firearm was u sed was subject to prosecution in a court of the United States or a co urt of a State, or both. 18 U.S.C. § 3559(c)(2)(D). Although § 3559(c)(3)( A)(i) does not itself refer to § 924(c), it would be anomalous to define firearms “use” one way for purposes of one subsection of the Three Strikes statute and ano ther way for purposes of a different subsection. 6 Cf. Bailey , 116 S. Ct. at 507 (“‘[U]sing a firearm’ should(1997), the defendant argued that one of his prior convictions constituted a

“nonqualifying felony” under § 3559(c)(3)(A). See id. at 1021. The prior conviction the defendant in Morrison sought to disqualify was a guilty plea that included a firearm use enhancement under the Califo rnia Penal Code. See id. at 1022. The enhancement applies if a defendant “‘per sonally uses a firearm in the commission or attempted commission of a felony.’” Id. at 1021 n.3 (quoting Cal. Penal Code § 12022.5(a)(1)). The court concluded that because the defendant had previously “pleaded guilty to firearm use,” he was precluded from arguing for purposes of § 3559(c)(3)(A) that he did not use a f irearm. Id. at 1021. In other words, whether the defendant used a firearm during the prior crime was “ res judicata ,” and the defendant did not now “have the right to rebut facts necessarily adjudicated by the earlier judgment.” Id. at 1022. In a footnote, the court noted the defendant had ar gued that for the prior offense to qualify as a strike, “it must involve ‘u se’ of a weapon as defined in Bailey .” Id. at 1022 n.6. The court then concluded: “This is a misreading of section 3559. Its list of ‘serious violent felon[i es]’ includes, inter alia , ‘firearms use’ and ‘robbery.’ While the section pertaining t o ‘firearms use’ makes explicit reference to section 924(c), see 18 U.S.C. § 3559(c)(2)(D), the section pertaining to robbery does not. See 18 U.S.C. § 3559(c)(3)(A).” Morrison , 113 F.3d at 1022 n.6 (alteration in original). The court did not de fine “use” for purposes of § 3559(c)(3)(A)(i). Although this court recognizes that § 3559(c)(3)(A) (i) does not specifically refer to § 924(c), we think it is nevertheless appr opriate to interpret the word “use” consistently throughout the Three Strikes statute. -11- not have a ‘different meaning in § 924(c)(1) than i t does in § 924(d).’” (quoting Smith v. United States , 508 U.S. 223, 235 (1993)); United Sav. Ass’n v. Timbers of Inwood Forest Assocs. , 484 U.S. 365, 371 (1988) (“Statutory construction

. . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme- -because the same terminology is used elsewhere in a context that makes its meani ng clear . . . .”); Sorenson v. Secretary of the Treasury of the United States , 475 U.S. 851, 860 (1986) (“The-12-

normal rule of statutory construction assumes that identical words used in different parts of the same act are intended to hav e the same meaning.” (internal quotations omitted)). The government appears to argue that “use” should b e interpreted broadly to include both intent to use a firearm and mere po ssession of a firearm. Bailey , however, teaches that the plain meaning of the word “use” does not support that construction. See Bailey , 116 S. Ct. at 506. Further, had Congress intende d to include intent to use a firearm or possession of a firearm within the scope of § 3559(c)(3)(A)(i), it could have done so expressly, as it has in other contexts. Cf. id. at 509 (“Congress knew how to draft a statute to r each a firearm that was ‘intended to be used’”). For example, in 18 U.S.C. § 924(d), Congress provided for forfeiture of “[a]ny firearm or ammunition invo lved in or used in . . . or . . . intended to be used in” certain specified offenses. 18 U.S.C. § 924(d) (1) (emphasis added); cf. U.S.S.G. § 2K2.1(b)(5) (increasing offense level f or certain firearm offenses if defendant “used or possessed” afirearm in connection with another felony or “possessed” a firearm with “intent” that it would be “used or possessed” in connection with another felony). Bec ause Congress knew how to address intent to use a firearm and possession of afirearm, but chose not do so in § 3559(c)(3)(A)(i), it would be inappropriate for this court to effectively usurp the legislative function by interpreting “use” broa dly to include those terms.7 The legislative history does very little to clarify the meaning of the words

“use” and “threat of use” in § 3559(c)(3)(A)(i). C ongress passed the Three Strikes statute in 1994 as part of a larger crime b ill, H.R. 3355. See Violent Crime Control & Law Enforcement Act of 1994, Pub. L . No. 103-322, § 70001, 108 Stat. 1796, 1982 (codified at 18 U.S.C. § 3559( c)). As originally introduced in 1993, H.R. 3355 did not contain a three strikes provision. See H.R. 3355, 103d Cong. (as introduced Oct. 26, 1993). After H.R. 3355 passed the House, the Senate amende d it by inserting the text of S. 1607, which contained a three strikes pr ovision. See H.R. 3355, 103d Cong. § 511 (as amended by Senate Nov. 19, 1993). As originally introduced, however, S. 1607 did not contain a three strikes pr ovision. See S. 1607, 103d Cong. (as introduced Nov. 1, 1993). The Senate sub sequently amended the bill to include such a provision. See 139 Cong. Rec. S15,258-62, S15,269 (daily ed. Nov. 8, 1993) (statement of Sen. Lott) (proposing amendment); 139 Cong. Rec. D1265 (daily ed. Nov. 8, 1993) (adopting amendment) . S. 1607's version of the three strikes provision, however, provided no excep tion for “nonqualifying felonies.” See H.R. 3355, 103d Cong. § 511 (as amended by Senate N ov. 19, 1993). After the Senate amended H.R. 3355, it went back to the House, where it was again amended, this time by inserting the text of H.R. 4092. See H.R. 3355, 103d Cong. (as amended by House Apr. 21, 1994). H. R. 4092, as originally introduced, contained a three strikes provision whi ch included an exception for “nonqualifying felonies.” See H.R. 4092, 103d Cong. § 501 (as introduced Mar. 18, 1994). In its original form, H.R. 4092 require d a defendant to prove by clear and convincing evidence that “no firearm or other d angerous weapon was involved in the offense.” Id. (emphasis added). Prior to inserting the language of H.R. 4092 into H.R. 3355, however, the House amende d the “nonqualifying felonies” section, adopting the current language. See 140 Cong. Rec. H2415, H2432 (daily ed. Apr. 19, 1994) (statement of Rep. Volkmer) (proposing amendment). The House also amended H.R. 4092 by ad ding two more offenses to the list of “serious violent felonies.” See id. The Conference Committee thereafter retained in H.R. 3355 the amended three strikes provision of H.R. 4092, and both the House and Senate concurred. See H.R. 3355, 103d Cong. § 70001 (enrolled version Aug. 25, 1994). The original version of the “nonqualifying felonies ” provision, requiring a defendant to prove that no firearm was “involved” i n the offense, is broader than the adopted version, requiring a defendant to prove that his actions did not -13- Based on the language and context of the Three St rikes statute, 7this courtconstitute the “use” or “threat of use” of a firear m. Under the adopted version,

therefore, it appears more defendants would be able to take advantage of the “nonqualifying felonies” exception and consequentlyavoid application of the Three Strikes statute. According to those Representatives who spoke in fav or of the amendment, however, the amendment was apparently intended to s trengthen the statute. Representative Volkmer, who proposed the amendment, stated that the amendment would “add[] language to require proof th at there was no threat of use of [a] firearm or other dangerous weapon during a r obbery, or an attempt, conspiracy, or solicitation to commit robbery.” 14 0 Cong. Rec. H2415, H2432 (daily ed. Apr. 19, 1994). Representative McCollumoffered his support for the amendment and stated that he and Volkmer had “discu ssed several weeks ago how the legislation has some weaknesses in the definiti on.” Id. Representative Hoyer stated that the amendment would “strengthen[] the b ill by increasing the number of repeat offenders subject to the three strikes” a nd would “close loopholes which may have been left open.” Id. No one spoke against the proposed amendment. See id. at H2433. It is difficult to reconcile the stated views with the apparent effect of the amendment. While the amendment to the “nonqualifyi ng felonies” exception seemingly reduces the number of defendants ultimate ly subject to the Three Strikes statute, the Representatives who spoke in f avor of the amendment heralded it as strengthening the statute. Thus, C ongress’ intended meaning of the words “use” and “threat of use” in § 3559(c)(3)(A)( i) is not clarified by the legislative history of the Three Strikes statute. -14- concludes the word “used” in § 3559(c)(3)(A)(i) means “active employment,” as that term is defined in Bailey

. See Bailey , 116 S. Ct. at 508-09. Therefore, to come within the purview of the “nonqualifying felony” exception, a defendant must establish by clear and convincing evidence that, inter alia , no firearm was actively employed in the offense. In this case, the underlying offense was conspiracyto commit robbery. Gottlieb never completed the substantive offense of robbery. When the-15-

underlying crime is an inchoate rather than a subst antive offense, application of the Baileydefinition of “use” is more difficult. At least o ne court has recognized this conundrum in the § 924(c) context. See United States v. Phan , 121 F.3d 149, 152-53 (4th Cir. 1997) (upholding defendant’s § 924 (c) conviction for “using” firearm during and in relation to conspiracy, where substantive crime was never committed), cert. denied, 1998 WL 69407 (Feb. 23, 1998); cf. United States v. Lampley , 127 F.3d 1231, 1240-41 (10th Cir. 1997) (noting that in determining under § 924(c) whether defendants “carried” firearm s “during and in relation to” the conspiracy, court is “faced with a difficult ta sk” when “the conspiracy never resulted in an underlying substantive crime”), cert. denied, 1998 WL 19401 (Feb. 23, 1998), and

1998 WL 38041 (Feb. 23, 1998), and 1998 WL 54259 (Mar. 9, 1998).
In Phan , the defendant was found guilty of conspiracy to c ommit robbery in violation of 18 U.S.C. § 1951 and of using a firear m during and in relation to a crime of violence in violation of § 924(c). See Phan , 121 F.3d at 151-52. Like Gottlieb, the defendant in Phan was arrested before committing the substantive crime of robbery. See id. at 151. In considering whether the defendant’s § 924(c) conviction should be upheld, the court first noted that conspiracy to commit robbery may serve as the predicate offense for § 92 4(c) liability. See id. at 152- 53. The court then stated that application of Baileyis “straightforward” in “cases8 Prior to the planned robbery, the defendant in Phan discussed with his

coconspirators the need to carry firearms during th e robbery and provided one of the coconspirators with two loaded handguns. See United States v. Phan , 121 F.3d 149, 151-52 (4th Cir. 1997), cert. denied, 1998 WL 69407 (Feb. 23, 1998). On the day of the intended robbery, the coconspirat ors placed the firearms under the seat of their car and drove to the robbery site

. See id. at 152. They were arrested before the robbery took place. See id. at 151. The defendant did not -16- where conspiracy to commit a violent crime is the p redicate offense, and the underlying [substantive] crime has been committed.” Id. at 153. The court recognized, however, that in cases where the substantive crime has not been committed, “Baileyoffers only imperfect guidance” on the question of whether a firearm was “used” during and in relation to the pr edicate offense of conspiracy. See id. In discussing the parameters of “use” in the context of a conspiracy, the Phan court first noted that “[i]f [the defendant] had m erely possessed the handguns at the time of the conspiracy, even if he intended to use them during the robbery, we would be forced to vacate his convictio n under Bailey .” Id. The court next stated that to affirm the defendant’s co nviction, it need not find that the defendant “actively employed the handguns in on e of the ways listed in Bailey ,” for Baileyrecognized that “‘use’ takes on different meanings depending
on context.” Id. The court then concluded that “[i]n the context o f the inchoate crime of conspiracy to commit robbery, we find thatthe giving of firearms to a fellow conspirator constitutes active employment.” 8 Id.accompany the coconspirators to the robbery site. See id. -17- Although Phan involved firearms “use” in the context of a § 924( c) conviction, the analysis is applicable in determini ng whether a firearm was “used” for purposes of § 3559(c)(3)(A)(i) of the Three Str ikes statute. As discussed above, it is undisputed that Gottlieb was arrested before he even touched the firearm in question. The firearm was at all times under the sole control of the federal agents. At best, the evidence shows Gottli eb attempted to acquire and intended to possess a firearm during the planned but frustrated robbery. As the court recognized in Phan , this is insufficient to constitute “use” under Bailey

. See id. Consequently, Gottlieb has met his burden of establishing that he did not “use” a firearm in connection with the 1987 offense

. b. “Threat of Use” of a Firearm The Three Strikes statute also does not define “thr eat of use” for purposes of determining whether an offense involved the “thr eat of use” of a firearm under § 3559(c)(3)(A)(i). Furthermore, no court has expr essly defined “threat of use” in this context. Gottlieb argues the word “threat” generally, and es pecially in criminal statutes, “means a communicated intent to engage in a harmful act against someone or something.” Gottlieb argues that under this definition of “threat,” the 1987 offense did not involve the “threat of use” of a firearm, particularly in light9 The government asserts that Gottlieb’s request of the firearm and his

reaching for the firearm “is the functional equival ent of [the Washington ] defendant’s three notes to bank tellers stating, ‘I have a gun.’” The government, however, fails to develop this mere assertion by explaining precisely how Gottlieb’s actions are the “functional equivalent” of communicating a threat to a -18- of the absence of evidence that the intended victim s even knew of the existence of the scheme. Gottlieb’s proposed definition of “threat” is consi stent with the one federal court case discussing the term in the context of th e Three Strikes statute. In United States v. Washington , 109 F.3d 335 (7th Cir.), cert. denied, 118 S. Ct. 134 (1997), the defendant, who was sentenced to life imprisonment under the Three Strikes statute, argued on appeal that his three ba nk robbery convictions constituted “nonqualifying felonies” under § 3559(c )(3)(A). See id. at 337. In each of the bank robberies, the defendant utilized a written note which stated, among other things, “‘I have a gun.’” Id. The court summarily concluded that “[s]uch a statement implies a ‘threat of use of a f irearm’ and prevents [the defendant] from satisfying subsection (i) [of § 355 9(c)(3)(A)].” Id. Although the Washington court did not expressly define “threat of use,” it s holding indicates the term includes a communicated expression to a vi ctim that the defendant would use a firearm. Relying on Washington , the government asserts Gottlieb’s actions in this case constituted a “threat of use” of a firearm. 9 Unlike the defendant invictim. -19-

Washington , however, Gottlieb did not communicate to any inte nded victim a threat to use a firearm. The presence of undercove r agents assured there was not even a reasonable possibility that Gottlieb would c ome into contact with his intended victims. The holding of Washington is therefore inapposite; its focus on a “threat” as a communication, however, is instruct ive. Gottlieb’s argument that “threat of use” of a firea rm means a communicated intent to use a firearm is also consistent with the plain meaning of the word “threat.” See Webster’s Third New International Dictionary 2382 (1993) (defining “threat” as an “expression of an intentio n to inflict loss or harm on another by illegal means and esp[ecially] by means involving coercion or duress of the person threatened”); Black’s Law Dictionary 1480 (6th ed. 1990) (defining “threat” as “[a] communicated intent to inflict phy sical or other harm,” “[a] declaration of an intention to injure,” “[a] declar ation of intention or determination to inflict punishment, loss, or pain, ” and “an avowed present determination or intent to injure”). Interpreted b roadly, however, the word “threat” can also mean a “risk” that something will occur. See Webster’s, supra , at 2382 (defining “threat” as “an indication of som ething impending and usu[ally] undesirable or unpleasant,” as in “the air held a [ threat] of rain”).10 The government makes no attempt to expressly define “threat of use.”

Rather, the government summarily asserts that Gottl ieb’s actions constituted such a threat. -20- The government apparently advocates this broader de finition of “threat.” Specifically, the government argues that “Gottlieb’ s actions of requesting a firearm . . ., dressing prepared to use a firearm ( ‘wearing a bulletproof vest . . .’), and . . . reaching for the firearm prevent Gottlieb from meeting the no-threat requirement.” 10 Gottlieb recognizes that “threat of use” may be int erpreted to mean “risk of use” but argues that if this broad definition were adopted, “virtually every robbery would be a qualifying felony because every robbery can be said to involve some inherent risk of use of a firearm.” There is a dif ference, however, between a general risk inherent in all violent crimes that a firearm may be used and a demonstrated risk that a firearm will be used in a particular offense. Therefore, if “threat of use” were interpreted broadly to include “risk of use,” the “nonqualifying felonies” exception would still have meaning. Cf. Bailey , 116 S. Ct. at 506 (noting that in determining meaning of s tatutory language, court should act “with the assumption that Congress intended eac h of [the statutory] terms to have meaning”). This court need not decide, however, whether “threat of use” of a firearm as used in § 3559(c)(3)(A)(i) means a communicated intent to use a firearm,-21-

whether it means a risk that a firearm would be use d in the offense, or whether it incorporates both meanings. Under any of these formulations, Gottlieb’s actions did not constitute a “threat.” It is undisputed th at Gottlieb was arrested before he even touched the firearm and before he ever came in to contact with his intended victims. Gottlieb therefore never had the opportun ity to threaten anyone with the firearm. Further, as Gottlieb notes, the firearm w as at all times under the sole control of the federal agents and at a place distan t from the site of the intended substantive crime. Thus, there was never any actua l risk that the firearm would be used in the offense. Under the discrete facts o f this case, therefore, the defendant has met his burden of establishing by cle ar and convincing evidence that no “threat of use” of a firearm was involved i n the 1987 offense. 3. Summary The government concedes that the 1987 offense did n ot result in death or serious bodily injury, therefore satisfying the sec ond prong of § 3559(c)(3)(A). This court concludes that Gottlieb has established by clear and convincing evidence that the 1987 offense did not involve the “use” or “threat of use” of a firearm, therefore satisfying the first prong of § 3559(c)(3)(A). Gottlieb’s 198711 Gottlieb also argues that requiring him to prove byclear and convincing

evidence that the 1987 offense did not involve the use or threat of use of a firearm violated his right to due process. Because this court concludes that Gottlieb has satisfied this heightened standard, we need not decide whether imposition of the standard in the context of the Th ree Strikes statute violates his due process rights. -22- conviction thus constitutes a “nonqualifying felony ” under § 3559(c)(3)(A) and cannot be used as a “strike” for purposes of satisf ying § 3559(c)(1). 11
B. Restitution Gottlieb next argues the district court erred in fa iling to make his restitution obligation joint and several with that of a codefendant who was also ordered to make full restitution. The government a grees that Gottlieb’s obligation should be joint and several and argues that the dis trict court’s “oral orders . . . clearly evince an intent that restitution be joint and several among Gottlieb and his codefendants.” Based on the district court’s s tatements at the sentencing hearing, it appears the court intended Gottlieb’s r estitution obligation to be joint12 According to the judgment entered by the court, the total loss to the bank

was $30,757. Of that amount, $2225 was recovered, leaving a balance of $28,532. At sentencing, the district court orderedGottlieb to make restitution in the amount of $28,532. After the district court ma de its finding regarding restitution, Gottlieb’s counsel objected, stating: “[T]here are two co-defendants and I think restitution, the Court indicated, would be solely the responsibility of Mr. Gottlieb.” The court responded: “It will be s olely their responsibility, too. All of them have full responsibility.” Gottlieb’s counsel then indicated his objection was resolved. According to the judgment entered for Mr. Hoffman, Gottlieb’s codefendant, the court ordered Mr. Hoffman to make restitution in the amount of $29,757. The judgment in Mr. Hoffman’s case states that the total loss to the bank was $30,757, with no offsetting loss recovered . It is unclear from the record why the court ordered Mr. Hoffman to pay more than Gottlieb. -23- and several. 12 As Gottlieb notes, however, the box labeled “join t and several” on the district court’s judgment is not checked. Restitution in this case was ordered pursuant to th e Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663. “A senten cing court may not order restitution under the VWPA in an amount greater than the total loss caused by a defendant’s conduct.” United States v. Harris , 7 F.3d 1537, 1539 (10th Cir. 1993). In cases such as this when there are multip le defendants, “the VWPA does not indicate how a court should apportion a restitution award.” Id. at 1540. As this court has held, however, a sentencing court may not require each codefendant to pay restitution for the entire loss suffered by the victim, because “victims theoretically could [thereby] receive more in resti tution than they had lost, a result at odds with both the VWPA’s limited purpose and its language.” United13 Approximately three-and-one-half months after oral argument in this case,

Gottlieb filed a Motion for Leave to File Supplemen tal Opening Brief. According to the Motion, Gottlieb had recently become aware o f and notified his counsel of a Second Circuit case decided in 1997, United States v. Collado , 106 F.3d 1097 (2d Cir. 1997), which Gottlieb asserts held that “u nder 21 U.S.C. § 851(a), an enhanced sentence cannot be imposed unless the pred icate offense forming the basis for the enhanced sentence was prosecuted by i ndictment or waiver thereof.” The Three Strikes statute incorporates the indictme nt requirement of § 851(a). See 18 U.S.C. § 3559(c)(4). -24- States v. Arutunoff

, 1 F.3d 1112, 1121 (10th Cir. 1993) (vacating rest itution order after concluding district court exceeded its statut ory authority because total amount of restitution orders imposed on codefendant s exceeded total loss caused by conspiracy). If, as Gottlieb claims, the district court ordered Gottlieb and his codefendant to each pay the full amount of the loss suffered by the bank, the court exceeded its statutory authority. See id. On the other hand, if the court intended the restitution obligations of Gottlieb and his cod efendant to be joint and several, the court acted within its authority. See Harris , 7 F.3d at 1540. Because it is unclear from the record what the district court int ended, this court vacates Gottlieb’s restitution order and remands to the dis trict court for clarification.
III. CONCLUSION For the reasons discussed above, this court VACATES Gottlieb’s sentence and restitution order and REMANDS to the district court for resentencing and for clarification of the restitution order. 13According to the Motion, one of the prior offenses the government relied

on in enhancing Gottlieb’s sentence “was prosecutedby information rather than by indictment or waiver thereof.” Gottlieb therefo re argues that if the Second Circuit’s interpretation of § 851(a) is correct, he should not have been sentenced under the Three Strikes statute. Gottlieb further notes, however, that this court has already rejected the Second Circuit’s interpret ation of § 851(a)’s indictment requirement. See United States v. Adams , 914 F.2d 1404, 1407 (10th Cir. 1990). Gottlieb thus states he is raising the issue here “ simply to preserve his right to petition the Supreme Court to consider the issue, s hould a petition for certiorari be necessary.” This court grants Gottlieb’s motion to file the sup plemental brief. In light of our conclusion that Gottlieb should not have bee n sentenced under the Three Strikes statute because his 1987 offense constitute s a “nonqualifying felony,” this court need not and does not address Gottlieb’s alte rnative argument that the statute should not apply because one of his prior “ strikes” was prosecuted by information rather than by indictment or waiver the reof. -25-