Whether the two clauses in 18 U.S.C. §924(c) creates two separate crimes or a single crime and whether the conflation of the elements of the two distinct clauses creates a nonexistent federal criminal offense,statutory-interpretation,criminal-law,federal-statute,sentencing,plea-agreement,criminal-procedure
24-6071"

QUESTIONS PRESENTED . Mr. John Rogers pleaded guilty to 18 U.S.C. § 924(c) as charged in count 4. The text of the statute of 18 U.S.C. § 924(c) provides in relevant part: [First clause] “Any person who, during and in relation to any crime of violence or drug trafficking crime...uses or carries a firearm, [second clause] or who, in furtherance of any such crime, possesses a firearm, shall in addition to the punishment provided for such crime...be sentenced to a term of imprisonment of not less than 5 years.” In this case, during the change of plea proceedings, the district court conflated the two clauses of § 924(c) by informing Mr. Rogers that he could be guilty of § 924(c) if a trier of fact found that he “carried” a firearm (part of the first clause) “in furtherance of” a drug trafficking crime (part of second clause). This cross-matching of elements from two separate sections of § 924(c) impermissibly authorized a conviction of a non-existent offense. The conduct that Mr. Rogers pled guilty to in Count 4 is not a criminal offense and no federal statute criminalizes this conduct. As a result, Mr. Rogers received a 5-year consecutive sentence for conduct that is not criminal under federal law. The 5", 6", 8", and 10" Circuits have held 18 U.S.C. § 924(c) criminalizes two separate offenses, thus conflating elements from the two 2 clauses creates a non-existent crime. However, the 9" Circuit, instead, has held that 18 U.S.C. §924(c) defines only one offense, not two. Therefore, conflating the elements of the two clauses would not be impermissible. This circuit split should be resolved to ensure uniformity among the circuits of whether 18 U.S.C. §924(c) creates two separate crimes or a single crime. The questions presented are: 1. Whether the two clauses in 18 U.S.C. §924(c) creates two separate crimes or a single crime and whether the conflation of the elements of the two distinct clauses in § 924(c) creates a non-existent federal criminal offense? 2. Whether Melendez v. United States, 518 U.S. 120 should be revisited because analyzing the statutory scheme of the substantial assistance statutes--18 U.S.C. §3553(e), 28 U.S.C. § 994 and U.S.S.G. § 5K1.1—and the powers of the Sentencing Commission conferred by Congress, a district court has discretion to depart below the statutory minimum sentencing following a government motion pursuant to U.S.S.G. § 5K1.1? 3 3. Whether the waiver of appeal provision in the plea agreement is not valid and is unenforceable because both the waiver and the guilty plea in count 4 were not knowingly and voluntarily made and enforcing the waiver would result in a miscarriage of justice because Mr. Rogers was convicted and sentenced on a non-existent offense and there is no federal statute that criminalizes the conduct as alleged in the Indictment? 4