U.S. v. ROBINSON

ion's share of the work on the remaining convictions. The offending Narcotics Division officers played only minor or subordinate roles. Evidence that some of those officers engaged in wrongful conduct unrelated to Robinson's case would do little to undermine the largely separate investigation's results, especially where unaffected officers were paired with the dismissed ones and where Special Agent Baldwin supervised the evidence gathering.

Second, Robinson's contention ignores the impressive amount of evidence against him from other sources. Even when one eliminates all traces of evidence from the dismissed officers, there remains overwhelming evidence of Robinson's guilt. Nineteen co-defendants and cooperating witnesses testified that Robinson conspired to traffic drugs. For example, Dorothy Blitchington stated that she and her burglar friends sold numerous guns to Robinson and his associates for crack, testimony echoed by Anthony Clark, Crystal Newsome, and Christopher Arthur. Stacey Stevens testified that he had purchased crack from Robinson and for him and that he had observed at least four others selling drugs for Robinson. Marqual Cunningham testified that he and Robinson would sell each other cocaine when they ran low on supplies and identified four of Robinson's drug runners. And that was just the beginning. We know that the jury credited much of it; the jury held Robinson accountable for fifty or more grams of crack, though the physical evidence introduced amounted to less than ten.

So too for Robinson's other remaining convictions. Robinson's first § 924(c) conviction (Count 3) and a felon-in-possession conviction (Count 4) stemmed from his trade of crack cocaine to Chris Arthur in exchange for one of two stolen Glock .40 pistols. The pistols' owner, a retired police officer, testified to their theft; Arthur testified that he stole and traded one of the specially marked pistols to Robinson; Newsome testified that she accompanied Arthur to Robinson's and watched the trade; and several of Robinson's co-conspirators testified to seeing the distinct weapon in Robinson's possession.

Similarly overwhelming evidence supported Robinson's second § 924(c) conviction (Count 9). The firearms' owner testified to their theft, Arthur again testified to stealing them and trading one to Robinson's co-conspirator Gilstrap, and Gilstrap testified to trading drugs for firearms with Arthur. And though Robinson's second felon-in-possession conviction (Count 13) stemmed from a .22 rifle seized in the August 2006 search, Robinson's possession of it was amply demonstrated by testimony from several of Robinson's co-conspirators. It strains credulity to claim that evidence regarding the unrelated misconduct of a few of the officers who testified at Robinson's trial could have undermined Robinson's thoroughly demonstrated guilt.

Robinson cannot demonstrate Custis's third, fourth, or fifth factors on his remaining convictions. The district court therefore did not err, let alone abuse its discretion, in partially denying him a retrial.

III.

Robinson does not pin his retrial hopes on Rule 33 alone. He also argues that he deserves an entirely new trial because the government suppressed the misconduct evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Because prosecutors did not actually or constructively possess knowledge of the officers' misconduct for Brady purposes and because Robinson cannot meet Brady's materiality requirement, we reject his attempt to recast his defunct Rule 33 claim in Brady terms.

A.

Robinson argues that basic Brady principles compel the conclusion that the prosecution suppressed the misconduct evidence. First, unlike Custis and Rule 33 generally, Brady covers impeachment as well as exculpatory evidence. See, e.g., Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Second, Brady applies wherever evidence is suppressed, regardless of the prosecutor's motivations. See, e.g., United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Finally, Brady's commands do not stop at the prosecutor's door; the knowledge of some of those who are part of the investigative team is imputed to prosecutors regardless of prosecutors' actual awareness. See, e.g., Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ("[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police."). Because the dismissed officers obviously knew about their own misconduct and because they were working on the government's behalf, Robinson argues the prosecution violated its duty to disclose those improprieties even though no prosecutor actually knew about them.

Whatever the proper scope of Brady's imputed knowledge doctrine, it cannot be this broad. If it were, every case analyzing retrials for subsequently discovered police misconduct under Rule 33 would be thrown into question. On Robinson's view, they should all have instead been Brady cases because the officers necessarily knew of their own misconduct and that knowledge is imputed to prosecutors, and therefore the courts' Rule 33 restrictions on retrials are at best unnecessary.

Robinson's view would not only undermine the framework of Rule 33. It would also impose unacceptable burdens on prosecutors and the police. Courts have routinely refused to extend Brady's constructive knowledge doctrine where doing so would cut against the agency principles underlying imputed knowledge and would require prosecutors to do full interviews and background checks on everyone who touched the case. See, e.g., United States v. Stewart, 433 F.3d 273 (2d Cir. 2006) (refusing to impute knowledge from expert witness who was not involved with the actual investigation); Moreno-Morales v. United States, 334 F.3d 140, 146-47 (1st Cir. 2003) (refusing to impute knowledge from Puerto Rico's Senate); United States v. Beers, 189 F.3d 1297, 1304 (10th Cir. 1999) (refusing to impute knowledge from state investigators to federal prosecutors). And with good reason: it is one thing to require prosecutors to inquire about whether police have turned up exculpatory or impeachment evidence during their investigation. It is quite another to require them, on pain of a possible retrial, to conduct disciplinary inquiries into the general conduct of every officer working the case.

We draw no hard and fast lines here about the scope of Brady imputation, and we reiterate that prosecutors have a duty to learn of exculpatory evidence gathered by those acting on the government's behalf. But on the facts of this case — where the affected officers and the prosecutors worked across state/federal lines, where no one other than the officers themselves had any idea of any impropriety, and where the misconduct evidence was unrelated to Robinson's own investigation — the principle of imputed knowledge cannot be said to apply.

B.

Even if Brady did cover the alleged "suppression" at issue here, Robinson cannot show that there is a "reasonable probability" that he would not have been convicted had the misconduct evidence been introduced. Strickler v. Greene, 527 U.S. 263, 296, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Brady's materiality requirement asks whether the suppressed evidence, including impeachment evidence, "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435, 115 S.Ct. 1555.

The misconduct evidence here pales in comparison with that suppressed in cases where Brady's materiality requirement was actually met. The dismissed officers were not "the only witness[es] linking [Robinson] with the crime[s]." Giglio, 405 U.S. at 151, 92 S.Ct. 763. Rather, numerous other law enforcement officers and more than a dozen co-defendants or cooperating witnesses corroborated each other's testimony and the physical evidence demonstrating Robinson's crimes. Nor did the misconduct evidence cut into a "somewhat thin and entirely circumstantial" government case. Monroe v. Angelone, 323 F.3d 286, 302 (4th Cir. 2003); see also Spicer v. Roxbury Corr. Inst., 194 F.3d 547, 559-61 (4th Cir. 1999) (suppressed impeachment evidence was material because no physical evidence existed and eyewitness testimony was weak). Instead, physical evidence, whose collection was largely supervised by Special Agent Baldwin, and the eyewitness accounts of numerous co-conspirators and others amply proved the government's contentions. Evidence regarding a few officers' unrelated misconduct could do little to damage the extensive physical and testimonial foundation of the case.

IV.

Robinson also argues that his § 924(c)-related convictions require reversal because of incorrect jury instructions and insufficient evidence. Section 924(c) contains two prongs, the "use or carry" prong and the "possession" prong. The first provides a mandatory minimum sentence for anyone who "during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm." 18 U.S.C. § 924(c)(1)(A). The second provides a mandatory minimum for anyone who "in furtherance of any such crime[] possesses a firearm." Id. Robinson was indicted under both prongs in each of Counts 2, 3 and 9. The district court instructed the jurors that "the trading of a firearm for a controlled substance constitutes use of such firearm during and in relation to a drug trafficking crime." Robinson did not object.

In full, § 924(c) states:

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime . . . be sentenced to a term of imprisonment of not less than 5 years. . . .

18 U.S.C. § 924(c)(1)(A)(i) (subsection division omitted).

At the time, this instruction fully accorded with the law in a majority of our sister circuits, see Watson v. United States, 552 U.S. 74, 78 n. 5, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007) (noting which circuits agreed and disagreed), as well as with our unpublished decisions, see, e.g., United States v. Belcher, No. 98-4845, 1999 WL 1080103 (4th Cir.Nov. 29, 1999) (per curiam). Before Robinson's appeal, however, the Supreme Court held that one who trades drugs for firearms does not "use" those firearms under § 924(c). Watson, 552 U.S. at 83, 128 S.Ct. 579. Robinson contends that Watson upends his convictions in two ways. First, he argues that the erroneous instruction itself requires reversal. Second, he argues that because Watson precludes a conviction under § 924(c)'s use prong, the government's evidence, which largely demonstrated that he traded drugs for firearms, was insufficient.

A.

Robinson did not object to the jury instructions at the time. His counsel rightly acknowledged at oral argument that this failure means we review those instructions for plain error. Rule 30 requires that defendants object to instructions "before the jury retires to deliberate" or face plain error review under Rule 52(b). Fed.R.Crim.P. 30(d). This rule applies even where settled law at the time of trial rejected the defendant's position. See Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (applying plain error review to an unchallenged jury instruction error where the law at trial was clear but had been reversed prior to appeal). This rule is necessary to avoid casual reversal of district courts who follow settled law to which no objection was raised at trial.

Under the plain error standard, Robinson must establish that the district court erred, that the error was plain, and that it "affect[ed] [his] substantial rights." United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Fed.R.Crim.P. 52(b)). Even if Robinson makes this showing, we retain discretion to deny relief; plain errors should only be corrected where not doing so would result in a "miscarriage of justice," Olano, 507 U.S. at 736, 113 S.Ct. 1770 (quotation omitted), or would otherwise "seriously affect[] the fairness, integrity or public reputation of judicial proceedings," id. at 736, 113 S.Ct. 1770 (quotation omitted).

In light of Watson, the district court's use instruction was plainly erroneous. See Johnson, 520 U.S. at 468, 117 S.Ct. 1544 ("[W]here the law at the time of trial was settled and clearly contrary to the law at the time of appeal," the trial court's use of the prior settled law is plain error.). But Robinson cannot prove that the error "actual[ly] prejudiced" him as required under Olano's third prong. United States v. Myers, 280 F.3d 407, 414 (4th Cir. 2002). In United States v. Hastings, 134 F.3d 235 (4th Cir. 1998), we discussed how plain error review's prejudice requirement applies where a defendant was indicted under multiple prongs of an offense but subjected to erroneous jury instructions on one of those prongs. We held that such a defendant "must demonstrate that the erroneous . . . instruction given . . . resulted in his conviction," not merely that it was impossible to tell under which prong the jury convicted. Id. at 243-44.

Applying this standard, Hastings upheld the defendant's § 924(c) conviction despite an erroneous use instruction because the jury's conviction under that instruction necessarily included findings sufficient to convict under the also-charged carry portion of § 924(c). See id. at 244. Therefore, Hastings could not demonstrate that the erroneous use instruction actually prejudiced him. If the possession prong — added to § 924(c) after Hastings — merely adds another way of committing an offense, Hastings squarely applies and Robinson must prove that his conviction must have stemmed from the erroneous use instruction and the erroneous use instruction alone.

But there is a possible wrinkle in applying Hastings to Robinson's case. The circuit courts are divided on whether § 924(c) creates one offense or two. Compare United States v. Gamboa, 439 F.3d 796 (8th Cir. 2006) (two offenses), and United States v. Combs, 369 F.3d 925 (6th Cir. 2004) (same), with United States v. Haynes, 582 F.3d 686 (7th Cir. 2009) (one offense), and United States v. Arreola, 467 F.3d 1153 (9th Cir. 2006) (same). There is a formal difference between requiring proof that a general verdict did not stem exclusively from an erroneously instructed prong of one offense, as Hastings did, and requiring proof that a general verdict did not stem exclusively from an erroneously instructed offense, though the situations are analogous, see Griffin v. United States, 502 U.S. 46, 49-50, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991). The question is whether that difference matters here.

We do not think that it does, and so we need not decide how many offenses § 924(c) creates. Where the two offenses were combined in one count there is little functional difference between a general verdict that could have been based on an erroneous offense instruction and one that could have been based on an erroneous means of offense instruction; in both cases the defendant may have been convicted on a legally inadequate ground, but we cannot tell because of the general verdict.

Robinson contends that his indictment duplicitously charged him with multiple offenses in single counts. Whatever duplicity problems result from indictments such as his should be dealt with directly rather than through modifications of plain error doctrine.

In keeping with plain error review's placement of the burden on the defendant, and in view of Hastings's teaching that the error must have actually resulted in prejudice and not merely possible or speculative prejudice, see Hastings, 134 F.3d at 243-44, such a defendant would still have to show that the erroneously instructed offense underlies his conviction, not the proper one. In other words, Robinson must show not only that he could have been convicted under the erroneous use instruction, but also that he was not convicted under the properly-instructed possession prong. Given the evidence and the jury instructions, Robinson could have been convicted under the erroneous use instruction. But the fact that he was convicted under § 924(c) at all demonstrates that his convictions also satisfied the properly instructed possession prong. To convict, the jury must have found that Robinson traded drugs for firearms. But because we hold that trading drugs for guns constitutes possession in furtherance within the meaning of § 924(c), Robinson could also have been convicted under the properly instructed possession prong. He therefore cannot show that his conviction resulted from the erroneous charge.

By holding that § 924(c)'s possession prong covers drugs-for-firearms trades, we align ourselves with a growing and consistent body of post- Watson precedent. Though Watson itself refrained from deciding the issue, see Watson, 552 U.S. at 83, 128 S.Ct. 579, every circuit court to have reached the question has agreed that such trades constitute possession in furtherance. See United States v. Gurka, 605 F.3d 40 (1st Cir. 2010); United States v. Gardner, 602 F.3d 97 (2d Cir. 2010); United States v. Doody, 600 F.3d 752 (7th Cir. 2010); United States v. Mahan, 586 F.3d 1185 (9th Cir. 2009); see also United States v. Sterling, 555 F.3d 452 (5th Cir. 2009) (assuming without deciding that such trades constitute possession in furtherance).

The striking uniformity here is no surprise, as this interpretation flows naturally from § 924(c)'s text. Those who trade drugs for firearms necessarily "possess" those weapons, as every successful trade of this type results in a drug dealer acquiring, at least temporarily, a firearm. See, e.g., Doody, 600 F.3d at 756. Such trades are also clearly "in furtherance of" drug trafficking crimes. Firearm possession occurs "in furtherance of" drug trafficking where it "further[s], advance[s], or help[s] forward" the offense. United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). Trading drugs for guns does just that. If drug dealers refused to do drug-for-firearm swaps some trafficking crimes, likely including some of those between Robinson and the burglars, would never occur. See United States v. Frederick, 406 F.3d 754, 764 (6th Cir. 2005). Trading drugs for firearms also furthers the underlying crime even where dealers and purchasers would be happy to use cash instead. Coming into possession during such trades completes (and thus necessarily furthers) each particular drug-for-firearm trafficking offense. See Mahan, 586 F.3d at 1189. Because his conduct falls squarely within § 924(c)'s possession prong, Robinson thus cannot demonstrate that his substantial rights were affected by the erroneous use instruction.

Even if Robinson somehow satisfied Olano's third prong, we would not disturb his convictions. Plain error review exists to correct only the most grievous of unnoticed errors. See United States v. Reid, 523 F.3d 310, 316-17 (4th Cir. 2008). In making this "case-specific and fact-intensive" determination, Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1433, 173 L.Ed.2d 266 (2009), Robinson's actual guilt or innocence is not the only consideration, but it is the most important, see, e.g., United States v. Jeffers, 570 F.3d 557, 570 (4th Cir. 2009) (looking primarily to actual guilt under Olano's fourth prong). In light of our conclusion that trading drugs for firearms is possession in furtherance and considering the evidence of those trades detailed above, there is no question that Robinson is guilty and would have been convicted anyway had the erroneous instruction not been given. We have repeatedly refused to notice errors in such circumstances. See, e.g., United States v. Foster, 507 F.3d 233, 251-52 (4th Cir. 2007); United States v. Williams, 152 F.3d 294, 300 (4th Cir. 1998).

Sustaining the convictions here fully accords with Congress's intent in § 924(c) to criminalize the sorts of drugs-for-guns swaps that regularly transpired in this case. Indeed, if we narrowed § 924(c)'s possession prong not to cover this behavior, the provision would be vitiated. Drugs-for-firearms swaps squarely present all of the aggravated risks that stem from mixing drugs and guns — they increase the number of trafficking offenses that occur and, by putting firearms in the hands of criminal and often dangerous drug traffickers, they raise the already high risk of violence in trafficking to a new level. When Robinson's conduct so clearly falls under Congress's strong condemnation, we must decline to overturn his convictions. See Williams, 152 F.3d at 300 (reversing a use or carry conviction where the defendant was guilty under either because of an erroneous use instruction would impugn the criminal justice system).

B.

Robinson further contends that the government introduced insufficient evidence to support his § 924(c)-related convictions. Though framed as an insufficiency claim, this argument also stems from Watson and the erroneous jury instructions. The government's evidence centered on Robinson's drugs-for-firearms trades, and throughout the proceedings the government and the district judge stated that these trades constituted "use" under § 924(c). Since Watson eliminates the possibility of convicting Robinson for these trades under the use prong, Robinson argues that the government did not introduce sufficient evidence that he violated § 924(c).

When reviewing the sufficiency of the evidence, we ask whether, viewed most favorably to the government, there is substantial evidence supporting the verdict. See United States v. Smith, 451 F.3d 209, 216 (4th Cir. 2006). As noted earlier, the indictment's § 924(c)-related counts each charged him under both prongs, a fact as fatal to Robinson's insufficiency claim as to his jury instruction claim. "As a general rule . . ., `when a jury returns a guilty verdict on an indictment charging several acts in the conjunctive . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged.'" United States v. Hawkes, 753 F.2d 355, 357 (4th Cir. 1985) (second omission in original) (quoting Turner v. United States, 396 U.S. 398, 420, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970)).

This sufficiency claim, like many of the claims before it, runs directly into the wealth of evidence detailing Robinson's activities. Given that evidence, which we have reviewed at length, the jury necessarily found that Robinson traded drugs for firearms. This finding, as the district court noted, had more than enough support. As we held above, Robinson could not help but possess firearms in furtherance of trafficking. Because there was sufficient evidence to convict under the possession prong, there was sufficient evidence for Robinson's § 924(c)-related convictions despite the erroneous use instruction.

V.

Robinson also takes issue with the § 924(c)-related aspects of his indictment and with the district court's treatment of them. He alleges that his indictment was duplicitous, charging multiple offenses within single counts. He also argues the district court constructively amended the indictment: the indictment's § 924(c)-related counts charged him with using and carrying and possessing in violation of § 924(c), but the district court instructed the jury that it could convict under either prong. We address these contentions in turn.

A.

Duplicitous indictments present the risk that a jury divided on two different offenses could nonetheless convict for the improperly fused double count. See, e.g., United States v. Spencer, 592 F.3d 866, 874-75 (8th Cir. 2010). But Robinson did not present this objection prior to the trial as called for by Rule 12(b)(3) of the Federal Rules of Criminal Procedure. To enforce this requirement, the Rules add that "[a] party waives any Rule 12(b)(3) defense, objection, or request not raised by [the proper deadline]" unless it can show good cause. Fed.R.Crim.P. 12(e); see also United States v. Colton, 231 F.3d 890, 909 (4th Cir. 2000) (enforcing waiver of a multiplicity claim); United States v. Price, 763 F.2d 640, 643-44 (4th Cir. 1985) (same). Robinson fails to raise any argument approaching a showing of good cause.

Several courts, however, have held that newly raised duplicity claims that go beyond technicalities to allege that the conviction could have rested on an impermissibly divided jury deserve plain error review. See, e.g., United States v. Lloyd, 462 F.3d 510, 514 (6th Cir. 2006); United States v. Hammen, 977 F.2d 379, 382 (7th Cir. 1992); United States v. Gordon, 844 F.2d 1397, 1400-01 (9th Cir. 1988). Out of an abundance of caution, we address and reject Robinson's duplicity claim under that standard as well. Even assuming that § 924(c) creates separate offenses and that the indictment's conjunctive charges were plainly duplicitous, there is considerable doubt whether Robinson can demonstrate an impact upon his substantial rights and no doubt at all that he cannot demonstrate a miscarriage of justice.

Both of these assumptions are debatable, particularly the second. Regarding error, as mentioned above the number of offenses in § 924(c) is unsettled. Regarding plainness, the question was open at the time of trial and remains so now. See, e.g., United States v. Kilbride, 584 F.3d 1240, 1255 (9th Cir. 2009) (no plain error where "the relevant law . . . was highly unsettled"); United States v. Gamez, 577 F.3d 394, 400 (2d Cir. 2009) ("Typically, we will not find plain error where the operative legal question is unsettled.") (internal quotation omitted).

Robinson likely cannot demonstrate prejudice because the jury necessarily credited the drugs-for-firearms evidence in convicting Robinson and because such trades constitute possession in furtherance. As a result, a juror willing to convict under the erroneous use instruction would have been willing to convict under the possession prong. See, e.g., United States v. Davis, 306 F.3d 398, 416 (6th Cir. 2002) (rejecting duplicity claim under plain error review where unanimity was assured). Although the use instruction was itself erroneous, we have already rejected Robinson's independent challenge to that error and will not accept it here under the guise of a duplicity challenge.

We would also reject Robinson's duplicity claim under Olano's fourth prong. To overturn Robinson's conviction because of a good-faith charging mistake — one that might not even have been a mistake — where the evidence demonstrated he traded drugs for firearms and thereby violated the possession prong would place form above substance and lessen public confidence in the criminal justice system.

B.

Robinson also argues that by charging the jury that it could convict Robinson if he violated either the use or carry prong or the possession prong, the district court constructively amended his indictment. That is, because the indictment charged that he violated both prongs, Robinson argues that the district court's instructions inappropriately broadened the possible bases for conviction from both prongs to just one or the other. Robinson failed to raise this issue below, but in this circuit constructive amendments are erroneous per se and require reversal regardless of preservation. See United States v. Foster, 507 F.3d 233, 242-43 (4th Cir. 2007); United States v. Floresca, 38 F.3d 706, 714 (4th Cir. 1994) (en banc).

We can easily reject Robinson's constructive amendment claim. Well-settled precedent supports the district court's instructions. "[W]hen the Government charges in the conjunctive, and the statute is worded in the disjunctive, the district court can instruct the jury in the disjunctive." United States v. Perry, 560 F.3d 246, 256 (4th Cir. 2009). Moreover, agreeing with Robinson here would upend settled duplicity doctrine and let his already denied duplicity claim in through the back door. It is black letter law that duplicitous indictments can be cured through appropriate jury instructions. See, e.g., United States v. Mauskar, 557 F.3d 219, 226-27 (5th Cir. 2009); United States v. Kakos, 483 F.3d 441, 445 n. 1 (6th Cir. 2007). If Robinson is right, though, all successful attempts at fixing duplicity are per se reversible constructive amendments. Floresca does not command any such result.

VI.

Robinson makes a few final contentions. First, he argues that under the Double Jeopardy Clause his § 924(c) convictions bar his § 924(o) conspiracy conviction. Because the former require proof the substantive crime was actually committed while the latter does not, and the latter requires proof of agreement but the former do not, these convictions satisfy the Double Jeopardy Clause. See Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

He also argues that his consecutive § 924(c) sentences accord with neither § 924(c)'s own meaning nor the prohibition against double jeopardy because his convictions had the same underlying predicate offense and stemmed from the same underlying course of criminal conduct. We rejected this argument in United States v. Camps, 32 F.3d 102 (4th Cir. 1994). Just as the defendant in Camps was properly sentenced for each individual act in violation of § 924(c), Robinson was properly sentenced for the separate drugs-for-firearms trades alleged in Counts 3 and 9.

Robinson argues further that he is not subject to mandatory minimums under § 924(c) because he was subject to a twenty-year mandatory minimum for the crack conspiracy. The statute reads: "Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who" violates the use or possession prongs is subject to at least a five-year mandatory minimum. 18 U.S.C. § 924(c)(1)(A). As Robinson notes, we have already disagreed with his interpretation of the "except" clause. In United States v. Studifin, 240 F.3d 415, 423 (4th Cir. 2001), we held that the clause creates a "safety valve" for higher punishments: if "any other provision of law" imposes a higher sentence for conduct violating § 924(c), the district court should impose that sentence, not the lower one specified in § 924(c).

Though Robinson raised this claim to preserve it for possible further review, the Supreme Court's recent decision in Abbott v. United States, ___ U.S. ___, 131 S.Ct. 18, ___ L.Ed.2d ___ (2010), eliminates that possibility. The Court held that § 924(c)'s "except" clause only applies where "another provision of law directed to conduct proscribed by § 924(c) imposes an even greater mandatory minimum." Id., 131 S.Ct. at 23. In other words, the Court agreed with Studifin's "safety valve" reading of the provision. See id., 131 S.Ct. at 30 (quoting Studifin, 240 F.3d at 423). Because Robinson's greater mandatory minimum stems from the crack conspiracy rather than any § 924(c) firearm violation, he cannot benefit from § 924(c)'s "except" clause and was therefore properly sentenced.

VII.

Robinson calls our attention to a host of categories, tests, and frameworks: Rule 33 factors, two-pronged Brady analysis, constructive amendments, the Blockburger test, and the like. We have conscientiously reviewed each claim. None of them, properly employed, provides Robinson his requested relief. But it is well also to take a step back and not lose the forest for the trees. Viewed from this broader perspective, two facts stand out. First, Congress has strongly condemned the precise kind of conduct for which Robinson stands accused — conduct that destroys communities, families, and individual lives. Second, overwhelming evidence presented at a fair trial demonstrated Robinson's guilt.

Robinson asks us to discount these facts and focus myopically on particular details — the unrelated misconduct of police officers marginally involved with his remaining convictions and the various technical aspects of the indictment and instructions to which he did not even object. To accept his invitation would contravene Congress's intent, value form over substance, and elevate doctrinal technicalities over common sense. The judgment below is therefore affirmed.

AFFIRMED.