United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY DISTRICT JUDGE
Natividad Silva, Jr., seeks habeas corpus relief under 28
U.S.C. § 2241 from his continued confinement at the
Federal Medical Center in Rochester, Minnesota, under an
enhanced sentence for successive firearms convictions under
18 U.S.C. § 924(c). United States v. Silva,
92-cr-342 (N.D. Tex.). The government has filed an answer and
both parties have submitted briefing. After considering all
of the pleadings and exhibits, the court concludes that the
petition must be denied for reasons set forth below.
Silva has made multiple attempts to challenge his conviction
and sentence, an overview of the case's procedural
history is necessary before addressing his challenge here.
Underlying Charges, Guilty Plea and Sentencing
30, 1992, a grand jury in the Dallas Division of the Northern
District of Texas returned a six-count indictment against
Silva. The charges stemmed from a series of armored-car
robberies in and around the Dallas metropolitan area. (Dkt. #
10, Exh. 4, Rearraignment Trans. at 7-10.) Counts
one, two, three and five charged Silva with robbery affecting
commerce. Count four charged Silva with using a firearm
during a crime of violence, while count six charged Silva
with using a firearm during a crime of violence as a second
or successive offense.
November 3, 1992, Silva pled guilty to all six counts of the
indictment. (Dkt. # 10, Exh. 4, Rearraignment Trans.
at 3.) The undisputed facts underlying the charged offenses
are as follows:
On June 8, 1992, the defendant [Silva] robbed Michael
Rodriguez, a guard for Loomis Armed, Inc. at gunpoint as he
was exiting the Home Depot store, 1975 W. Northwest Highway,
Dallas, Texas. The defendant took Mr. Rodriguez' gun and
a money bag that contained approximately $43, 508.86,
including $15, 101 in cash.
On June 17, 1992, Silva robbed Robert Robles, a guard
employed by Loomis Armed, Inc., at gunpoint as he was exiting
the Home Depot store, 1441 Trinity Mills Roads, Carrollton,
On July 6, 1992, Silva robbed Charles Wallace, a guard for
Loomis Armed, Inc., at gunpoint as he was entering DFW Check
Cashiers Store, 102 West Main Street, Grand Prairie, Texas.
The defendant took Mr. Wallace's gun but did not receive
any money because the robbery took place before the guard
entered the store.
On July 6, 1992, approximately one hour after the robbery at
DFW Check Cashiers Store, the defendant robbed Jose Garza, a
guard for Armored Transport of Texas, at gunpoint as he was
leaving the K-Mart Store, Cedar Hill, Texas. The defendant
took Mr. Garza's gun and approximately $45, 980,
including $19, 000 in cash.
(Dkt. # 11, Exh. 3, Presentence Report at
¶¶ 2-5.) Silva admitted that he was the gunman
during each of the robberies. Silva's co-defendant and
brother, Jesus Silva, confessed to being the driver during
the two robberies on July 6, 1992.
sentencing hearing took place on January 3, 1993. During that
proceeding, the district court sentenced Silva to concurrent
97-month terms of imprisonment for the robbery charges lodged
in counts one, two, three and five. The district court
imposed a consecutive 60-month term of imprisonment on the
first firearms offense alleged in count four, for carrying a
firearm during a crime of violence in violation of 18 U.S.C.
§ 924(c). The district court then imposed a consecutive
20-year prison sentence on the second firearm offense
outlined in count six, also for using a deadly weapon during
a crime of violence in violation of § 924(c). In doing
so, the district court expressly found that the conviction in
count six was subject to an enhancement found in §
924(c) for “second or successive” convictions for
the use of a deadly weapon during a crime of violence,
relying on the holding of the Fifth Circuit Court of Appeals
in United States v. Deal, 954 F.2d 262 (5th Cir.
1992). (Dkt. # 10, Exh. 4A, Sentencing Trans. at
Deal, which also involved a string of armed
robberies, the Fifth Circuit ruled that a second or
successive conviction for use of a firearm during a crime of
violence can result from the same indictment as the first
such conviction. Deal, 954 F.2d at 263.
Specifically, where separate counts relate to bank robberies
committed on different occasions, the court held that the
enhancement applies even when the second or successive
convictions are part of the same indictment. Id. Any
doubt as to this reading of the statute was removed after the
United States Supreme Court granted certiorari review and
similarly held that a “second or subsequent
conviction” as used in § 924(c) can arise in a
single proceeding when multiple offenses are proved. See
Deal v. United ...