*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This 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. 

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

### DEC 17 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. SEBASTIAN L. ECCLESTON, Defendant - Appellant. No. 96-2272 (D.C. No. CR-95-14-LH) (District of New Mexico)

ORDER AND JUDGMENT *

Before ANDERSON , EBEL and LUCERO , Circuit Judges.

Sebastian Eccleston pled guilty to carjacking in vi olation of 18 U.S.C. § 2119(1), using and carrying a sawed-off shotgun in relation to carjacking in violation of 18 U.S.C. § 924(c), interference with commerce by threat or violence against the victim in violation of 18 U.S.C. § 1951 (a), and carrying a sawed-off shotgun in relation to interference with commerce i n violation of 18 U.S.C. § 924(c). He was also charged as an accomplice under18 U.S.C. § 2 in all the-2-

counts to which he pled. The district court impose d a sentence of 57 months for carjacking and interference with commerce, to run c oncurrently; the mandatory 120 months for the first § 924(c) offense; and the mandatory 240 months for the second § 924(c) offense, for a total of 417 months in prison. Eccleston appeals, arguing that, because he was convicted as an accomp lice, both sentences imposed pursuant to § 924(c) were improper. We affirm.
I On December 15, 1994, Sebastian Eccleston and Ronal d Martinez approached a vehicle in an Albuquerque, New Mexico motel parking lot. Martinez pointed a sawed-off shotgun at the driver’ s head and ordered him to get out of the car. As the victim exited the car, he s aw Eccleston pointing a gun at him. The victim took cover and Eccleston and Marti nez drove away in the vehicle. Roughly half an hour later, Eccleston and Martinez robbed two individuals in the parking lot of another motel. According to the victims, Eccleston pointed a handgun at the female victim, took her purse, and t hen pointed his gun at the male victim and demanded his wallet. The victims saw Ma rtinez standing near the vehicle with a sawed-off shotgun and heard him cham ber a round. Eccleston and Martinez drove away in the stolen car.1 Section 924(c)(1) states:

Whoever, during and in relation to any crime of violence . . . 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 of violence . . ., be sentenced to imprisonment for five years, and if the firearm is a . . . short-barreled shotgun . . ., to imprisonment for ten years. . . . In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years. -3- Shortly thereafter, the Albuquerque police and the county sheriff’s office were informed of the crimes. The stolen car was sp otted and a high-speed chase ensued. Eccleston and Martinez lost control of the car, struck another vehicle, and then fled on foot. Martinez was apprehended an d the shotgun was recovered. Eccleston was arrested at a later date; his weapon was not recovered.
II Eccleston contends that the “active employment” req uirement enunciated in Bailey v. United States , 116 S. Ct. 501, 505 (1995), requires a reversal o f his sentence. He argues that the district court erred in imposing the mandatory tenyear sentence pursuant to 18 U.S.C. § 924(c) for us ing or carrying a sawed-off shotgun in relation to a crime of violence because, as an accomplice, he did not actively employ the shotgun. 1 The application of the sentencing provisions of § 924(c) is a question of law that we review de novo. See United States v. Deal , 954 F.2d 262, 262-63 (5th Cir. 1992), aff’d , 508 U.S. 129 (1993).-4-

There is no support in the case law for Eccleston’s contention that, as an accomplice, he is not subject to liability under § 924(c). This circuit has impliedly found that § 924(c) liability is applicab le to accomplices. See United States v. Spring , 80 F.3d 1450, 1464-66 (10th Cir.) (reversing conv iction on one count of aiding and abetting in violation of § 924( c) based on erroneous jury instructions but affirming on two other counts of a iding and abetting under § 924(c)), cert. denied , 117 S. Ct. 385 (1996). Baileycannot be read to prevent an accomplice from being convicted and sentenced under§ 924(c). In Bailey , the Supreme Court held that “use” in § 924(c)(1) requires “evidence sufficient to show an active employmentof the firearm by the defendant, a use that makes the firearm an operativ e factor in relation to the predicate offense.” 116 S. Ct. at 505. The Court explained that “‘use’ certainly includes brandishing, displaying, bartering, striki ng with, and most obviously, firing or attempting to fire, a firearm.” Id. at 508. The decision in Baileydid not purport to alter our understanding of accomplice li ability. Thus, we reiterate the well-established precept that 18 U.S.C. § 2 does no t create an independent crime; rather, it serves to abolish the common law distinc tion between principal and accessory. See United States v. Smith , 838 F.2d 436, 441 (10th Cir. 1988); 18 U.S.C. § 2(a) (“Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a2Eccleston attempts to distinguish these cases on the ground that they involved

defendants who were unarmed. Because he was armed with his own gun, Eccleston claims that he cannot be convicted of aiding and abetting Martinez’s use of the shotgun. No cases are cited to support this proposition which, if accepted, would lead to the bizarre result that armed accomplices would receive lighter sentences than unarmed ones. -5- principal.”). This conclusion is supported by the case law of several of our sister circuits. See United States v. Willis , 89 F.3d 1371, 1377-79 (8th Cir.) (upholding § 924(c) convictions under accomplice liability the ory), cert. denied , 117 S. Ct. 273 (1996); United States v. Sullivan , 85 F.3d 743, 747-48 (1st Cir. 1996) (holding that jury properly could have found defend ant guilty of § 924(c) as an accomplice); United States v. Price , 76 F.3d 526, 529 (3d Cir. 1996) (rejecting defendant’s argument that he could not be convicted under § 924(c) based on aiding and abetting theory). 2 Additionally, we note that Eccleston entered guilty pleas to both counts charging violations of 18 U.S.C. §§ 924(c) and 2, a nd has not sought to withdraw those guilty pleas, which were supported by ample e vidence.
III Eccleston’s second argument on appeal is that the d istrict court erroneously imposed the mandatory twenty-year sentence for the second conviction under 18 U.S.C. § 924(c). In Deal v. United States , 508 U.S. 129, 132 (1993), the Supreme Court held that the mandatory twenty-year sentence for the second or subsequent conviction under 18 U.S.C. § 924(c) may be imposed even though the first-6-

sentence has not become final. Thus, the enhanced sentence may be applied to a second conviction which arises from the same prosec ution as the first. See United States v. Abreu , 997 F.2d 825, 826 (10th Cir. 1993) (en banc) (aff irming enhanced sentences in light of Deal ). Eccleston, in an argument devoid of support in either law or logic, contends that the h olding in Deal does not apply to him because he was convicted as an accessory, rathe r than as a principal. This argument does not comport with the theory of accomp lice liability, see 18 U.S.C. § 2 (stating that whoever aids or abets in the comm ission of an offense is punishable as a principal), or with the language of Deal , see 508 U.S. at 136 (the penal goals of § 924(c) include “taking repeat offe nders off the streets for especially long periods, or simply visiting society ’s retribution upon repeat offenders more severely”). We will not disturb the enhanced sentence imposed by the district court.
AFFIRM. ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge