United States v. McHenry.
No. 24-7048. 12/12/2025. E.D.Okla. Judge Eid. Using and Carrying a Firearm During and in Relation to a Crime of Violence—Sufficiency of Evidence—Constructive Possession of Firearm.
December 12, 2025
B.N. and C.J. drank alcohol and smoked marijuana in a motel room. B.N. asked C.J. for a ride home, but C.J. declined because he had been drinking. B.N. then contacted McHenry for a ride home. McHenry picked up B.N. from the motel in his Honda, but instead of driving her home, he took her to his house. Shortly thereafter, McHenry’s girlfriend, Clark, arrived, and the couple assaulted B.N. At McHenry’s direction, Clark held B.N. at gunpoint with McHenry’s shotgun while McHenry bound and gagged B.N. The couple then searched B.N. for money and drugs but failed to find anything. B.N. told McHenry she had “left everything” at the motel, so McHenry shut B.N. in the trunk of his Honda and told Clark to follow him. McHenry then drove to the motel in his Honda, with his shotgun on the back floorboard and B.N. in the trunk. Clark followed McHenry in a separate car. At the motel, McHenry left B.N. and his shotgun in the Honda and went with Clark to C.J.’s motel room. McHenry forced his way into the room, where C.J. remained, and stole all of C.J.’s things, including the keys to his Subaru. McHenry, pretending to have a gun, then told C.J. that he would kill C.J. and his family if he reported the Subaru stolen. McHenry and Clark then left the motel, with McHenry in C.J.’s Subaru and Clark following behind in McHenry’s Honda, which contained McHenry’s shotgun and the stolen items. The couple later switched vehicles at McHenry’s direction. McHenry ultimately drove B.N. in his Honda to a shed, where he confined her. B.N. later escaped and had a neighbor call 911. Law enforcement recovered C.J.’s things from the Honda and the house near the shed. The same day, McHenry and Clark were arrested at a hotel, where law enforcement recovered the shotgun from the hotel room and found C.J.’s Subaru parked outside. McHenry was charged with (1) conspiracy to commit kidnapping; (2) kidnapping; (3) carjacking; (4) robbery in Indian Country; and (5) using and carrying a firearm during and in relation to a crime of violence, in violation of 18 USC §§ 2 and 924(c)(l)(A)(i). Counts 3 and 4, which criminalize taking property by force and violence, were the “crime of violence” predicates for the § 924(c)(1)(A)(i) charge in Count 5. McHenry was found guilty on all charges, and by special interrogatory, the jury indicated that it found McHenry guilty of carrying (but not using) a firearm during the robberies. The district court imposed the mandatory consecutive five-year sentence required by the § 924(c)(1)(A) conviction, for a total sentence of 35 years’ imprisonment.
On appeal, McHenry argued that there was insufficient evidence that he carried his shotgun during the predicate robbery offenses because he did not possess or move the shotgun during the “taking” stage of either offense. To sustain a conviction under 18 USC § 924(c)(1), the government must prove that the defendant (1) committed the underlying crime, (2) used or carried a weapon, and (3) used or carried the weapon “during and in relation to” the underlying offense. First, it is undisputed that McHenry committed the underlying crimes. Second, under Tenth Circuit precedent, a person “carries” under § 924(c)(1) by possessing a weapon through controlling and transporting it. And the US Supreme Court in Muscarello v. United States, 524 U.S. 125, 126–27 (1998), held that a person “carries a firearm” under § 924(c)(1) when they knowingly possess and convey the firearm in a vehicle that the person accompanies. Thus, McHenry carried the shotgun in the Honda while he drove the Honda from his house to the motel with his shotgun sitting on the back floorboard. Third, carriage does not have to occur at the moment the defendant completes the last statutory element of a predicate crime. Rather, a § 924(c)(1) conviction may lie if carriage occurred during the ongoing and underlying crime. Robbery is generally viewed as a continuing offense that continues throughout flight from the scene. Under the facts here, a rational juror could conclude that McHenry had control over Clark and the Honda during the time McHenry drove the Subaru and led Clark in the Honda. The evidence sufficed to prove that McHenry was fleeing the scene of his robberies in the stolen Subaru while also constructively carrying the shotgun in the Honda. Accordingly, there was sufficient evidence that McHenry “carried” a firearm “during” his “ongoing and underlying” robberies to sustain McHenry’s § 924(c)(1)(A) conviction.
The conviction was affirmed.