Patrick Wayne McHenry v. United States

When Petitioner Patrick McHenry robbed a motel guest, his shotgun stayed in a car parked outside. Mr. McHenry’s girlfriend later drove away from the motel in that car, while Mr. McHenry left in a different vehicle. Mr. McHenry was charged with carrying a firearm during a crime of violence under 18 U.S.C. § 924(c). At trial, the government argued only that he personally carried the firearm before and after the takings— when he drove it to the motel and after he had already left. Neither the government’s arguments nor the jury instructions suggested that flight from the scene can be part of a robbery for § 924(c) purposes, or that Mr. McHenry violated § 924(c) when he told his girlfriend to drive away in the car with the shotgun. The Tenth Circuit nonetheless affirmed, holding that a robbery continues at least through any immediate post-taking flight—even though the offense-element conduct is already over—so Mr. McHenry constructively carried the shotgun “during” the robbery by having his girlfriend drive away with it after the takings. The court acknowledged that the government did not make this argument at trial, but it concluded (in the two-judge concurrence’s words) that the jury had enough “puzzle pieces” to convict on this theory. The questions presented are:

1. Whether the decision below should be summarily reversed for affirming a conviction on a theory that “the Government[] fail[ed] to argue,” App. 23a, and the court never submitted to the jury.

2. Whether a defendant violates § 924(c) by carrying a firearm “during” a crime of violence if he does not carry the firearm while committing the offense’s conduct elements—only after the elements are complete.