Constructive Carriage and the Escape Phase of Robbery: The Tenth Circuit’s Expansion of § 924(c) Liability in United States v. McHenry

I. Introduction

A. Overview

In United States v. McHenry, No. 24‑7048 (10th Cir. Dec. 12, 2025), the Tenth Circuit confronted a narrow but important question under 18 U.S.C. § 924(c)(1)(A): when, for purposes of a robbery-based predicate offense, is a defendant “carrying” a firearm “during and in relation to” the crime of violence?

The decision is significant for two reasons. First, it holds that a robbery (including carjacking and robbery in Indian Country under 18 U.S.C. §§ 2119 and 2111) is a continuing offense that extends through the escape or flight phase for § 924(c) timing purposes. Second, it reaffirms and applies Tenth Circuit precedent on constructive “carriage” of a firearm: a defendant can “carry” a firearm, within the meaning of § 924(c), even when a subordinate or accomplice drives the gun in a separate vehicle at the defendant’s direction.

B. Factual Background (Condensed)

The facts, viewed in the light most favorable to the government, are disturbing and important to the legal analysis.

• On September 11, 2021, B.N. spent the day with C.J. at a Motel 6 in Muskogee, Oklahoma. Later that night, McHenry picked up B.N., took her to his home rather than home as requested, and, with his girlfriend Ashton Clark, severely assaulted her.
• Clark, at McHenry’s direction, held B.N. at gunpoint with McHenry’s shotgun while McHenry bound and gagged her. When they found no valuables on B.N., she said she had left her belongings at the Motel 6.
• McHenry forced B.N. into the trunk of his Honda. He placed his shotgun on the back floorboard of the Honda and drove toward the Motel 6; Clark followed in a separate car.
• At the Motel 6, McHenry left B.N. and the shotgun in the Honda, went with Clark to C.J.’s room, forced his way in, threatened to kill C.J., stripped him, and stole his personal property and his Subaru, all without the shotgun on his person (though C.J. believed he might be armed).
• After obtaining C.J.’s keys and forcing him to reinstall fuses he had removed from the Subaru, McHenry returned C.J. to the room, ordered him to lie in the bathroom until daylight, threatened to kill him and his family if he reported the crimes, and left in the stolen Subaru. Clark followed at McHenry’s direction, driving McHenry’s Honda, which now contained both the shotgun and the stolen goods.
• During flight, when B.N. managed to open the trunk, Clark stopped and called McHenry. He arrived in the Subaru, moved B.N. into the back seat of the Honda, moved the shotgun to the front passenger floorboard, and personally drove the Honda with B.N. and the shotgun while Clark switched to the Subaru.
• McHenry later left the Subaru and continued in the Honda to Braggs, Oklahoma, where he confined B.N. in a shed until she escaped the next day. Police later recovered C.J.’s belongings from the Honda and the Braggs property and found McHenry’s shotgun in a duffle bag when arresting McHenry and Clark at a Tulsa hotel.

C. Procedural Posture and Issue Presented

A federal grand jury indicted McHenry on five counts: conspiracy to kidnap, kidnapping, carjacking (§ 2119), robbery in Indian Country (§ 2111), and using and carrying a firearm during and in relation to a crime of violence (§ 924(c)(1)(A)), predicated on the carjacking and the robbery in Indian Country (Counts 3 and 4).

At trial, the jury:

• found McHenry guilty on all counts, and
• via special interrogatory, specified that he was guilty of carrying (but not using) a firearm during and in relation to the predicate robberies.

The district court imposed the mandatory consecutive five-year sentence under § 924(c), for a total of thirty-five years.

On appeal, McHenry did not challenge the robbery and carjacking convictions themselves. Instead, he raised a narrow sufficiency challenge to the § 924(c) count, arguing:

Because the statutes defining carjacking and robbery in Indian Country criminalize only the violent “taking” of property, he could be guilty of “carrying” a firearm “during” those crimes only if he possessed and moved a gun while engaged in the taking itself. Since no gun was on his person during the Motel 6 robbery or the taking of the Subaru, the § 924(c) conviction could not stand.

The Tenth Circuit, in a published opinion by Judge Eid (joined by Judges McHugh and Federico), rejected that argument and affirmed. Judge Federico, joined by Judge McHugh, wrote a separate concurrence to address difficult waiver questions about the theory on which the conviction was sustained.

II. Summary of the Opinion

A. Holding

The court held that there was sufficient evidence for a rational jury to find that McHenry “carried” a firearm “during and in relation to” the predicate robberies, within the meaning of § 924(c)(1)(A), because:

1. McHenry “carried” the shotgun in two ways:
   • by personally transporting it in his Honda, and
   • by constructively carrying it when Clark, acting under his direction, drove the Honda containing the shotgun while he led the flight in the stolen Subaru.
2. The robberies (carjacking and robbery in Indian Country) were continuing offenses that extended through McHenry’s flight from the Motel 6, such that his carriage of the shotgun during that escape phase occurred “during” the underlying crimes for § 924(c) purposes.
3. The firearm played an integral role in the overall criminal episode and McHenry intended to avail himself of it, satisfying the “during and in relation to” requirement.

B. Key Doctrinal Moves

The decision makes three doctrinal moves of note:

• It applies Muscarello v. United States, 524 U.S. 125 (1998), and Tenth Circuit cases such as United States v. Martinez, 912 F.2d 419 (10th Cir. 1990), and United States v. Lindsey, 389 F.3d 1334 (10th Cir. 2004), to treat both personal transport and directed transport by an accomplice as “carrying” under § 924(c).
• It extends United States v. Brown, 400 F.3d 1242 (10th Cir. 2005), which treated drug manufacturing as a “continuing offense” for § 924(c) timing purposes, to the robbery context, rejecting McHenry’s argument that “tak[ing]” in §§ 2111 and 2119 ends the relevant period once the last statutory element is satisfied.
• It aligns the Tenth Circuit with other circuits that treat the escape or flight phase of robbery as part of the robbery itself for § 924(c), even where the underlying statute does not explicitly include an asportation (“carrying away”) element.

The concurrence agrees on the merits but cautions that the law governing when an appellate court may affirm on a theory not clearly argued to the jury is underdeveloped. It concludes, however, that the constructive possession during flight theory was sufficiently presented such that affirmance is proper.

III. Precedential Framework

A. Statutory Background

Section 924(c)(1)(A) mandates at least a five-year consecutive sentence for:

“any person who, during and in relation to any crime of violence ... uses or carries a firearm.”

The government must prove three elements (United States v. Lampley, 127 F.3d 1231, 1240 (10th Cir. 1997), citing United States v. Richardson, 86 F.3d 1537, 1548 (10th Cir. 1996)):

1. the defendant committed the underlying crime of violence,
2. the defendant used or carried a firearm, and
3. the use or carriage was “during and in relation to” that underlying crime.

The predicate crimes here were:

• 18 U.S.C. § 2111 — robbery in Indian Country: taking personal property “from the person or presence of another, by force and violence, or by intimidation” within the special maritime and territorial jurisdiction of the United States.
• 18 U.S.C. § 2119 — carjacking: taking a motor vehicle “from the person or presence of another by force and violence or by intimidation,” with the requisite intent to cause death or serious bodily harm.

Notably, both statutes criminalize the “taking” of property; unlike common-law robbery, they do not expressly include an asportation (“and carries away”) element.

B. Defining “Carry” Under § 924(c)

The opinion relies on several key authorities.

• United States v. Martinez, 912 F.2d 419 (10th Cir. 1990): The court held that “carry” under § 924(c) has two elements:
  1. possession of the weapon through exercise of dominion or control (actual or constructive), and
  2. transportation or movement of the weapon.
  This definition was reaffirmed in United States v. Durham, 139 F.3d 1325, 1335 (10th Cir. 1998).
• Muscarello v. United States, 524 U.S. 125 (1998): The Supreme Court broadly construed “carries a firearm” in § 924(c) to include knowingly possessing and conveying a firearm in a vehicle, including in a locked glove compartment or trunk, so long as the person is accompanying the vehicle.
• United States v. Lindsey, 389 F.3d 1334 (10th Cir. 2004): Crucial to McHenry, Lindsey held that a defendant can “carry” a firearm constructively when:
  • a subordinate who “did whatever [the defendant] told him to do” drove a U-Haul containing firearms,
  • the defendant directed the subordinate to drive the U-Haul, insisted it travel in tandem with him, paid for it, and
  • the defendant “went along with” the U-Haul in another vehicle.
  The court held that the defendant maintained constructive possession since he exercised dominion and control over both the subordinate and the U-Haul, and thus “transported” the firearms even though he was not physically in the truck.

C. “During and in Relation to” and Continuing Offenses

The Tenth Circuit has interpreted “during and in relation to” to require a functional nexus between the firearm and the crime.

• United States v. Shuler, 181 F.3d 1188 (10th Cir. 1999): A firearm is carried “during and in relation to” the crime when the defendant “avails himself of the weapon and ... the weapon plays an integral role in the underlying offense” (quoting Lampley). The government must show a nexus and that the defendant intended the weapon to be available for use during the crime (Richardson, 86 F.3d at 1548).
• United States v. Brown, 400 F.3d 1242 (10th Cir. 2005): The defendant was convicted under § 924(c) based on carrying a firearm during and in relation to manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1).
  • The firearm was in a partner’s van that the defendant drove while carrying precursors and equipment.
  • The defendant argued that he was not “manufacturing” meth while in the van, and was not carrying the firearm in the locations where he actually “manufactured” meth.
  • The Tenth Circuit treated the meth manufacturing as a “continuing and ongoing operation” and asked whether the firearm was connected to the offense as a whole.
  • The trips to obtain and transport chemicals, during which the gun was carried, were “essential to the maintenance of [the] continuous methamphetamine manufacturing enterprise,” and thus occurred “during” the crime.
  Brown thus stands for the proposition that an underlying offense may be a continuing offense for § 924(c) purposes even if the statute, by its terms, appears to define a discrete act, and that carriage need not coincide with the moment the final statutory element is satisfied.

D. Robbery, Flight, and the Escape Phase

The McHenry panel grounds its robbery-as-continuing-offense analysis in multiple sources:

• United States v. Garcia-Caraveo, 586 F.3d 1230 (10th Cir. 2009): The court held that “the uniform generic definition of robbery incorporates the continuing offense theory” (id. at 1236), relying on the widely shared understanding that robbery includes conduct during the escape.
• Model Penal Code § 222.1(1): It provides that an act is “in the course of committing a theft” if it occurs “in an attempt to commit theft or in flight after the attempt or commission” (emphasis added). The Tenth Circuit invokes this formulation as reflective of the prevailing generic view.
• United States v. Burton, 121 F. App’x 318 (10th Cir. 2005) (unpublished):
  • The court affirmed a § 924(c) conviction where the defendant did not bring a gun into the bank but possessed it “while obviously fleeing the robbery.”
  • Burton explicitly stated that “escape or flight is a phase of a robbery” and that carrying a gun during that phase is “during” the robbery.
  While nonprecedential, Burton anticipates the reasoning applied here and gains force given broader circuit consensus.
• Other Circuits’ Bank Robbery Decisions:
  • United States v. Reichow, 416 F.3d 802, 805 (8th Cir. 2005), and United States v. Pate, 932 F.2d 736, 738 (8th Cir. 1991): escape from a bank robbery under § 2113(a) is part of the robbery and occurs “during” it for § 924(c) purposes.
  • United States v. Williams, 344 F.3d 365, 374–75 (3d Cir. 2003): adopts a “common sense, temporal approach” and treats flight as part of a bank robbery under § 924(c).
  • United States v. Andrews, 442 F.3d 996, 1002 (7th Cir. 2006): “Escape is considered part of a robbery and the use of a firearm during an escape is a violation of 18 U.S.C. § 924(c).”
  • United States v. Cecil, 615 F.3d 678, 693 (6th Cir. 2010): collects bank robbery cases and applies the same principle in the Hobbs Act robbery context.
  The McHenry panel notes that § 2113(a) (bank robbery), § 2111 (robbery in Indian Country), and § 2119 (carjacking) all share analogous “tak[ing]” language and that the bank robbery and robbery-in-territorial jurisdiction statutes were models for the carjacking provision (Jones v. United States, 526 U.S. 227, 235–36 & n.4 (1999)).

E. Appellate Review and Theory-of-the-Case Constraints

The concurrence, and to a lesser extent the majority, also engage with Supreme Court guidance on the limits of affirming on unpresented theories:

• McCormick v. United States, 500 U.S. 257 (1991): The Court warned that appellate courts are not permitted “to affirm convictions on any theory they please simply because the facts necessary to support the theory were presented to the jury.” A defendant is denied his right to a jury when an appellate court effectively retries the case on a different theory and under different instructions.
• Ciminelli v. United States, 598 U.S. 306 (2023): The Court rejected the government’s attempt to salvage a conviction by asking the Court to “cherry-pick facts” presented to a jury that had been charged under an invalid right-to-control theory and apply them to a different wire fraud theory on appeal. Doing so would improperly assume the function of the jury.
• Tenth Circuit principles:
  • The Tenth Circuit retains discretion to affirm on any basis supported by the record, even if not raised on appeal (United States v. Margheim, 770 F.3d 1312, 1325 (10th Cir. 2014), quoting Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011)).
  • But this discretion does not extend to theories never presented to the jury in a way that would satisfy McCormick and Ciminelli.

Judge Federico’s concurrence wrestles with how these principles apply when the government’s closing argument and jury instructions are general, and the appellate court wishes to rely on a more specific doctrinal theory (here, constructive carriage during flight) that was not sharply framed for the jury.

IV. The Court’s Legal Reasoning

A. Element One: “Carrying” a Firearm

Applying Martinez, Durham, and Muscarello, the court first concludes that McHenry “carried” the shotgun within the meaning of § 924(c).

Two distinct modes of carriage are identified:

1. Direct carriage:
   • When McHenry drove the Honda from his house to the Motel 6, with the shotgun on the back floorboard and B.N. in the trunk, he clearly possessed the gun and transported it in a vehicle he accompanied. Under Muscarello, this is paradigmatic “carrying.”
   • Later, after B.N. opened the trunk during flight, McHenry moved her to the back seat, placed the shotgun on the front passenger floorboard, and personally drove the Honda again, accompanied by Clark in the Subaru. This is again direct carriage.
2. Constructive carriage via subordinate driver:
   • After the Motel 6 robbery, McHenry drove away in the stolen Subaru, while Clark, at his direction, followed in the Honda containing the shotgun (and stolen items).
   • Clark testified that McHenry “made [her] get in the Honda and drive it” and told her “to follow him.” She consistently treated McHenry as the decisionmaker: she called him when the trunk problem arose, and she later left the Subaru and separated from him only when he told her to do so.
   • These facts closely parallel Lindsey, where the Tenth Circuit found constructive carriage when a subordinate who “did whatever [the defendant] told him to do” drove a firearm-laden U-Haul while the defendant followed in another vehicle and insisted they travel in tandem.
   • Although McHenry did not own or pay for the Honda, Clark testified that it was loaned to McHenry and not returned because of a dispute; in practical terms, McHenry treated and controlled it as his own.

The court thus holds that a rational juror could find that McHenry exercised dominion and control over both Clark and the Honda, satisfying the possession prong, and that directing her to follow in tandem with the shotgun inside satisfied the transportation prong of “carry.”

B. Element Two: “During and in Relation to” the Robberies

McHenry’s central argument focused on timing. He contended that a § 924(c) conviction based on “carrying” a firearm “during ... [a] crime of violence” requires that the gun be carried contemporaneously with conduct that constitutes an element of the predicate offense. Because §§ 2111 and 2119 criminalize only “taking” property by force or intimidation, he argued that the robbery “starts and ends with a violent taking,” and therefore any carriage before or after the actual taking is outside § 924(c)’s scope.

The court rejects this argument in two steps.

1. Rejecting a Narrow Element-by-Element Temporal Approach

The court leans heavily on Brown. There, the defendant similarly argued that he was not “manufacturing” methamphetamine within the meaning of § 841(a)(1) while carrying a gun in the van, since manufacturing requires more than mere possession of precursors.

The Tenth Circuit in Brown reasoned that:

• Evidence showed not just isolated acts of manufacturing but a “continuous and ongoing operation” over weeks.
• The offense was therefore a “continuing offense” for § 924(c) timing purposes, even though the statute, textually, focuses on “manufactur[ing]” as a discrete act.
• The relevant question was whether the firearm was sufficiently connected to the continuing offense as a whole, not whether it was present at some discrete “point in the methamphetamine production process.”

Applying this reasoning, the McHenry majority holds that § 924(c)’s “during” requirement does not demand that carriage occur at the precise moment the last element of the predicate offense is satisfied. Instead, if the predicate crime is properly characterized as ongoing or continuous, carriage at any point during that overall criminal episode can satisfy the statute, provided the nexus requirement is met.

2. Characterizing Robbery and Carjacking as Continuing Offenses

The court then asks whether the robberies here were continuing offenses that included McHenry’s escape from the Motel 6. It concludes that they were, drawing on:

• Garcia-Caraveo’s recognition that the “uniform generic definition of robbery” incorporates the continuing-offense theory;
• The Model Penal Code’s definition of conduct “in the course of committing a theft” to include “flight after the attempt or commission”;
• Multiple circuits’ holdings that escape from a bank robbery under § 2113(a) is part of the robbery for § 924(c) purposes; and
• The close textual and historical kinship among § 2113(a) (bank robbery), § 2111 (robbery in Indian Country), and § 2119 (carjacking), each of which uses “tak[ing]” language and shares common ancestry (Jones, 526 U.S. at 235–36 & n.4).

The court recognizes that §§ 2111 and 2119, like § 2113(a), do not contain an explicit “and carries away” clause, but it rejects the idea that this textual omission limits § 924(c) “during” liability to the instantaneous taking. Relying on generic robbery principles and national consensus, it treats escape or flight from the scene as part of the robbery.

On the facts, McHenry’s conduct fits squarely within this framework:

• Immediately after violently taking C.J.’s property and car, McHenry and Clark departed in tandem vehicles, one of which (the Honda) carried the shotgun and the stolen items. This is an “obvious” escape phase analogous to that in Burton (within a few blocks and minutes of the bank, with proceeds nearby).
• McHenry’s threats to C.J.—to kill him and his family if he reported the stolen car and to stay on the bathroom floor until daylight—were specifically calculated to facilitate that escape, delaying reporting and aiding flight. Those threats linked the escape phase tightly to the original robbery and carjacking.

By characterizing robbery as a continuing offense through the escape phase, the court holds that McHenry’s constructive and actual carriage of the shotgun in the immediate post-taking flight occurred “during” the robberies.

C. Nexus and “In Relation To”

Although the opinion does not dwell at length on the “in relation to” prong, it invokes Shuler and Lampley’s formulation that the defendant must “avail[] himself of the weapon” and that the weapon must play an “integral role” in the offense.

On these facts, the nexus is straightforward:

• McHenry and Clark initially used the shotgun to terrorize and control B.N. at McHenry’s house, facilitating the kidnapping that led to the Motel 6 robbery.
• McHenry transported B.N. and the shotgun to the Motel 6 in the same vehicle; the gun was within reach and available to enforce threats or counter resistance.
• During flight, he kept the shotgun in close proximity—on the front passenger floorboard—while transporting the kidnap victim and the proceeds, and he orchestrated Clark’s movements in the vehicle that initially contained the gun.

From this, a rational jury could infer that McHenry intended the shotgun to be available for use throughout the criminal episode, including the escape. That suffices for “in relation to.”

D. Addressing the Government’s Litigation Theory

The majority acknowledges that, on appeal, the government primarily defended the verdict by emphasizing McHenry’s carriage of the shotgun before arriving at the Motel 6—that is, while driving to the motel, gun within reach and accomplice following in tandem. The court instead chooses to affirm based on post-taking carriage during flight.

It justifies this in two ways:

1. Appellate flexibility: Citing Chiarella v. United States, 445 U.S. 222, 236 (1980), the court notes it may affirm a criminal conviction on any theory presented to the jury, regardless of how it is framed on appeal.
2. Presentation of the post-taking theory at trial: The majority points out that:
   • During closing argument, the government told the jury that McHenry transported the shotgun from the Motel 6 to the Braggs house and then back to Tulsa, and explicitly argued that “simply retrieving” the gun from the Honda away from the Motel 6 constituted carrying during and in relation to the carjacking and robbery.
   • At oral argument on appeal, the government confirmed it had always maintained that the robbery was still ongoing during the escape and relied on United States v. Von Roeder, 435 F.2d 1004 (10th Cir. 1970), for the proposition that escape is part of a robbery.
   • McHenry’s own appellate brief devoted a full section to attacking this “escape phase” theory, underscoring that he understood it to be part of the government’s case.

On this record, the majority concludes that the post-taking carriage theory was indeed “presented to the jury,” and that affirming on that theory does not require the court to “assume ... the function ... of a jury” in violation of Ciminelli.

E. The Concurrence: Waiver and the Theory of the Case

Judge Federico, joined by Judge McHugh, concurs in the judgment but highlights how close the waiver issue is.

He distinguishes two types of waiver:

1. Appellate waiver (failure to raise an argument in the appellate briefs):
   • Here, the government did not cite Lindsey or squarely argue the constructive-possession-during-flight theory in its briefs, raising it only at oral argument.
   • The concurrence notes that the Tenth Circuit has discretion to affirm on any basis supported by the record, so appellate waiver is not fatal.
2. Trial waiver (failure to present a theory to the jury):
   • Under McCormick and Ciminelli, appellate courts may not salvage a conviction by affirming on a theory never presented to the jury or covered by the instructions.
   • Doing so would mean the appellate court is effectively acting as the factfinder in the first instance, using a different legal framework than that given to the jury.

The concurrence emphasizes that the law governing trial waiver is underdeveloped. McCormick seems to ground it both in the theory argued and the jury instructions; Ciminelli focuses more on the instructions. It remains unclear how specific the government’s theory must be, or how closely the jury instructions must track that theory, to avoid trial waiver.

Ultimately, Judge Federico concludes that, although “barely,” the constructive possession during flight theory was sufficiently before the jury:

• The government argued McHenry possessed the shotgun “for the entire relevant period,” which necessarily included the escape.
• The jury was expressly instructed on constructive possession, including the concept that a defendant can possess a firearm “through another person.”
• Clark’s testimony supplied the factual pieces—McHenry directed her to drive the Honda, to follow him, and to alter course when he commanded.

Even though the government did not neatly tie those pieces together in closing as “constructive possession during flight,” a rational juror could have done so. Because the sufficiency standard asks only whether any reasonable juror could have reached the verdict, the concurrence would affirm on that narrow ground.

V. Simplifying Key Legal Concepts

1. Section 924(c)(1)(A)

This statute adds a mandatory consecutive prison term when a defendant:

• commits a federal “crime of violence” or drug trafficking offense,
• and “uses” or “carries” a firearm,
• “during and in relation to” that underlying crime.

The additional term is at least five years and must run consecutively to any sentence on the underlying crime.

2. “Use” vs. “Carry”

The jury here found McHenry guilty of “carrying” but not “using” a firearm. “Use” generally connotes active employment of the gun (brandishing, firing, displaying, etc.). “Carry,” by contrast, encompasses possession plus movement, and does not require brandishing or firing.

3. Constructive Possession / Constructive “Carriage”

A person has actual possession of an item when it is physically on his person or in his immediate hand. A person has constructive possession when he does not physically hold the item but nonetheless has:

• the power to control it, and
• the intent to exercise that control.

In the § 924(c) context, constructive carriage arises when a defendant:

• exercises dominion and control over someone who is physically moving the firearm (e.g., an accomplice driver), and
• directs that person and the vehicle containing the gun in a material way (choosing route, requiring tandem travel, instructing stops and starts).

Under Lindsey and McHenry, that can satisfy the “carry” element.

4. Continuing Offense

A continuing offense is one that does not occur at a single instant but unfolds over time. For § 924(c) purposes, this means:

• The “crime of violence” is not confined to the moment when all statutory elements are first satisfied.
• Conduct like preparation, execution, and escape may all be considered part of one ongoing criminal episode, if the nature of the offense and precedent so support.

In Brown, meth manufacturing was treated as such a continuing offense. In McHenry, robbery and carjacking are treated as continuing through the escape phase.

5. Asportation and “Taking”

At common law, larceny and robbery required not only a taking, but also asportation—a carrying away of the property. Modern federal robbery statutes like §§ 2111, 2119, and 2113(a) speak only of “tak[ing]” property by force or intimidation and do not explicitly require asportation.

McHenry tried to use that omission to argue that the “offense” ends the moment the taking is complete. The Tenth Circuit, following generic robbery doctrine and other circuits, holds that for § 924(c) timing purposes, robbery remains a continuing offense that includes escape, regardless of whether the statute uses an asportation element.

6. Sufficiency of the Evidence Review

On a sufficiency challenge, the appellate court:

• reviews the entire record in the light most favorable to the government,
• asks whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Emmons, 24 F.3d 1210, 1217 (10th Cir. 1994)),
• and will not reweigh evidence or second-guess witness credibility (United States v. Sapp, 53 F.3d 1100, 1103 (10th Cir. 1995)).

This deferential standard is why the concurrence phrases its conclusion in terms of what a reasonable juror could have found, rather than what the court itself believes happened.

7. Waiver and Theory of the Case

Two distinct ideas are at play:

• Appellate waiver: A party may forfeit arguments not raised in its briefs. An appellate court often has discretion to ignore such arguments, but it also has discretion to affirm on any ground supported by the record.
• Trial waiver / theory-of-the-case limitations: Even if the facts would support a new theory, an appellate court may not reframe the case on appeal by affirming a conviction based on a theory never presented to the jury or covered by instructions. This protects the defendant’s Sixth Amendment right to a jury determination of guilt on the actual legal theory used to convict.

McHenry sits at the intersection of those doctrines. The majority and concurrence ultimately conclude that the constructive carriage during flight theory was sufficiently part of the government’s case at trial to allow affirmance, but the concurrence underscores how thin the margin is.

VI. Impact and Implications

A. Expansion and Clarification of § 924(c) in Robbery and Carjacking Cases

McHenry cements several important principles for the Tenth Circuit:

1. Robbery and carjacking are continuing offenses for § 924(c) timing purposes.
   • Carriage of a firearm during the escape or flight phase of a robbery or carjacking can satisfy the “during” element.
   • Defense arguments that limit § 924(c) exposure to the precise moment of the taking are unlikely to succeed.
2. Constructive carriage through an accomplice in a separate vehicle is squarely within § 924(c).
   • Prosecutors can rely on Lindsey and McHenry to charge § 924(c) when a defendant orchestrates movements of an accomplice who physically transports the firearm, even if the defendant rides in another car.
   • Evidence of payment for the vehicle, insistence on tandem travel, or detailed direction over the accomplice will be central to establishing constructive possession.
3. The “during and in relation to” nexus can be satisfied by the weapon’s role in facilitating escape.
   • Threats or conduct that are calculated to secure a safe getaway (e.g., threats to delay reporting, use of the gun to maintain control over victims during escape) strengthen the case that the gun was related to the crime.

B. Implications for Defense Strategy

Defense counsel in robbery and carjacking cases within the Tenth Circuit should account for several points:

• Temporal containment arguments are weakened. Arguing that § 924(c) liability cannot extend beyond the moment of the taking will now face McHenry and Brown head-on. Defense arguments must instead focus on:
  • whether the underlying offense was properly characterized as “continuing” on the specific facts, or
  • whether the firearm was genuinely integrated into that continuing offense.
• Constructive possession instructions become critical.
  • Where the government’s theory hinges on constructive carriage, defense counsel should scrutinize jury instructions on constructive possession and seek clarifications or limitations, particularly concerning possession “through another person.”
  • Factual disputes about the degree of control over accomplices (e.g., whether they “did whatever [the defendant] told [them] to do”) will be pivotal at trial.
• Waiver and theory-of-the-case preservation.
  • Defense teams should clearly identify and object to the government’s theories at trial, building a record for later argument that an affirming theory was never presented to the jury.
  • Given the concurrence’s concerns, future cases may further refine how specifically a theory must be presented to avoid trial waiver.

C. Jury Instructions and Charging Decisions

Prosecutors and trial judges in the Tenth Circuit will likely respond to McHenry by:

• Crafting § 924(c) jury instructions that explicitly encompass:
  • the escape or flight phase as part of the underlying robbery,
  • constructive possession “through another person,” and
  • carriage in a vehicle, whether occupied by the defendant or by an accomplice under his control.
• Using special interrogatories (as in this case) to separate “use” from “carry,” which can help preserve verdicts when one theory is legally vulnerable.
• Framing indictment language to encompass the entire criminal episode, including escape, to preempt arguments that the charged time window ends with the initial taking.

D. Appellate Practice and Theory Limitation

McHenry also implicitly guides appellate practice:

• The Tenth Circuit is willing to affirm on a theory that is not front-and-center in the government’s appellate briefing if:
  • that theory was actually presented to the jury (or at least was reasonably encompassed by the jury instructions and arguments), and
  • the record supports a finding that a reasonable juror could have adopted it.
• However, the concurrence’s emphasis on the closeness of the waiver question signals:
  • future panels may be more cautious in inferring that a theory was presented to the jury; and
  • litigants should be clearer at trial about the precise legal theories underlying a § 924(c) charge, especially when constructive possession or continuing offense concepts are central.

E. Alignment with Other Circuits and Potential for Further Review

By explicitly treating escape from robbery and carjacking as part of the predicate offense for § 924(c) purposes, the Tenth Circuit aligns itself with the Third, Sixth, Seventh, and Eighth Circuits’ treatment of bank robbery and related offenses. This bolsters national uniformity on the escape-as-part-of-robbery question.

At the same time, the opinion extends the Tenth Circuit’s own “continuing offense” doctrine from drug manufacturing to robbery in a way that may invite further development:

• Future cases could test how far the “continuing offense” concept extends: for example, how temporally or spatially remote conduct can be and still count as “during” the predicate offense.
• The concurrence’s discussion of trial waiver and the limits of appellate reframing under Ciminelli suggests potential for en banc or Supreme Court clarification on when a theory is sufficiently presented to the jury.

VII. Conclusion

United States v. McHenry is an important clarification of § 924(c) law in the Tenth Circuit. It establishes that:

• Robbery and carjacking are continuing offenses that extend through escape, such that carrying a firearm during flight can satisfy the “during and in relation to” requirement.
• A defendant may “carry” a firearm constructively when he exercises dominion and control over an accomplice who transports the gun in a separate vehicle at his direction.
• The nexus requirement is met when the firearm is integrated into the overall criminal episode and intended to be available to enforce threats or secure safe escape.
• Appellate courts may affirm on such a theory if it was adequately presented to the jury, but must remain attentive to the constraints imposed by McCormick and Ciminelli on affirming based on uncharged or un-instructed legal theories.

Practically, McHenry broadens the temporal window for § 924(c) exposure in robbery and carjacking cases and reinforces the reach of constructive possession theories. Doctrinally, it deepens the Tenth Circuit’s commitment to viewing certain crimes as continuing offenses for § 924(c) and highlights unresolved tensions around theory-of-the-case waiver on appeal. Lawyers and courts in the Tenth Circuit will need to take both aspects into account in future violent crime prosecutions and appeals.