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Folks, everyone needs to thoroughly read through Olson & Brewer's AMICUS CURIAE Brief with the Fifth Circuit :

Olson and Brewer lay out what kind of malfeasance Sutton's office committed. First, as they point out, Sutton deliberately changed the wording of the statute in order to prosecute the agents :

" A. Each of Counts Four and Five of the Indictment Contains an Erroneous Allegation of the Offense Defined in 18 U.S.C. Section 924(c)(1)(A).
In McGilberry, this Court ruled that, in order to charge a crime under 18 U.S.C. Section 924(c)(1)(A), an indictment must allege that a defendant either has “use[d] or carrie[d] a firearm ... during and in relation to any [crime of violence]” or has “possess[ed] a firearm” “in furtherance of” such a crime. McGilberry, 480 F.3d at 329 (emphasis added). Conspicuously absent from this ruling is any mention that an indictment charging a violation of 18 U.S.C. Section 924(c)(1)(A) would be sufficient if it alleged that a defendant “discharged”a firearm during and in relation to a crime of violence, such as was alleged in Counts Four and Five of the indictment in this case.
Indeed, six years before McGilberry, this Court ruled that “discharging a firearm during and in relation to a crime of violence” was not an “actus reus” element of the offense defined by 18 U.S.C. Section 924(c)(1)(A), but only a “sentencing factor.” See United States v. Barton, 257 F.3d 433, 441-43 (5th Cir. 2001).
One year after Barton, the Supreme Court affirmed this 5th Circuit rule, concluding that 18 U.S.C. Section 924(c)(1)(A) defines a “single crime,” namely, the use or carrying of a firearm during and in relation to a crime of violence or the possession of a firearm in furtherance of such a crime. See Harris v. United States, 536 U.S. 545, 550-53 (2002).
In Harris, the Supreme Court determined that 18 U.S.C. Section 924(c)(1)(A)(iii), which referred to the discharge of a firearm, did not define a separate offense. Rather, it ruled that subsection (iii), like its companions (i) and (ii), identified only certain “sentencing factors” to be considered by the trial judge after conviction of the offense that is fully defined in the paragraph immediately preceding subsection (i). Id., 536 U.S. at 552-54.

Sutton deliberately misstated the statute to the Grand Jury to obtain indictments :

"In disregard of these definitive rulings, the prosecution in this case obtained from the Grand Jury an indictment setting forth Counts Four and Five, which charged Defendants with the crime of having “knowingly discharged a firearm ... during and in relation to a crime of violence....” Document No. 66, p. 3, 1R-119-126 (emphasis added).
Having misstated the crime defined by 18 U.S.C. Section 924(c)(1)(A), Counts Four and Five failed to charge either Defendant with any criminal offense whatsoever. See McGilberry, 480 F.3d at 329 and Barton, 257 F.3d at 443."

Olson and Brewer elaborate further :

"B. The Misdescription in Counts Four and Five of the Offense Defined in 18 U.S.C. Section 924(c)(1)(A) Was Plainly Erroneous.
Even before the United States Supreme Court decided Harris, and years prior to the indictment and trial of Defendants Ramos and Compean, this Circuit ruled that the “discharge” of a firearm was neither an element of the offense defined by 18 U.S.C. Section 924(c)(1)(A) nor a separate offense defined by 18 U.S.C. Section 924(c)(1)(A)(iii), but was only a sentencing factor. See United States v. Barton, 257 F.3d 433, 441-43 (5th Cir. 2001).
Notwithstanding those pertinent precedents, the prosecution in this case erased that well-established distinction, substituting “discharge” for one of the statutorily-identified actus reus elements — use, carry, and possess. As was true in McGilberry, where the prosecution “erroneously combined the ‘possession’ prong of the statute with the ‘during and in relation to’ prong,” it was “plain error” for the prosecution to combine the “during and in relation to” prong with the “discharge” factor, thereby creating a purported criminal offense never enacted into law by Congress. See McGilberry, 480 F.3d at 329-30."

Then Olson and Brewer show that the Court's instructions to the Jury were in error :

"Not only did the prosecution misdescribe in Counts Four and Five of the indictment the crime defined by 18 U.S.C. Section 924(c)(1)(A), the trial court misdirected the jury.
First, the court erroneously told the jury that “Title 18, United States Code, Section 924(c)(1), makes it a crime for anyone to discharge a firearm during and in relation to a crime of violence.” See Jury Instructions, pp. 27-28; 2R424-425 (emphasis added).
As pointed out in sections II. A. and B. above, that instruction to the jury is flatly contradicted by Harris, Barton, and McGilberry.
Second, having misdescribed the elements of the offense, the trial court erroneously directed the jury that “to find the defendant[s] guilty of this crime, you must be convinced that the government has proven ... beyond a reasonable doubt ... [t]hat the defendant[s] knowingly discharged a firearm during and in relation to one or more of the crimes charged in Count One, Two or Three.” Jury Instructions, pp. 28-29; 2R425-26 (emphasis added).
By this instruction, the trial court invited the jury to return a verdict of guilty not based any actus reus element of the offense defined in 18 U.S.C. Section 924(c)(1)(A), but on a mens rea element disconnected from any actus reus specified in the offense."

Here Olson and Brewer get to the real heart of the matter :

" And by instructing the jury that the offenses charged in Counts I, II, and III were “crimes of violence,” and that it only need to find that the “firearm” had “some purpose, role, or effect with respect to those crimes, the trial court deprived Defendants of their constitutional right to have the jury decide whether the Defendants’ “use” or “carrying” of the firearms was “during and in relation to” a “crime of violence” or “during and in relation to” their employment as Border Patrol Agents. See United States v. Martin Linen Supply Co., 430 U.S. 564, 572 (1977)"

Sorry about the length of this post. But these are critical arguments.

An argument can be made that the BP agents have yet to be charged with actually violating statute 924(c)(1)(A).

This is the part of code relevant to the discussion, para (c)1(A) in context.

TITLE 18 > PART I > CHAPTER 44 > § 924

§ 924. Penalties
(a)...

(b)...

(c)

(1)

(A) 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—

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

(B) If the firearm possessed by a person convicted of a violation of this subsection—

(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or

(ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.

(i) be sentenced to a term of imprisonment of not less than 25 years; and

(ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life.

(D) Notwithstanding any other provision of law—

(i) a court shall not place on probation any person convicted of a violation of this subsection; and

(ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.

(2) For purposes of this subsection, the term “drug trafficking crime” means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or the Maritime Drug Law Enforcement Act (46 App. U.S.C. 1901 et seq.).

(3) For purposes of this subsection the term “crime of violence” means an offense that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

(4) For purposes of this subsection, the term “brandish” means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.

(5) Except to the extent that a greater minimum sentence is otherwise provided under 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 armor piercing ammunition, or who, in furtherance of any such crime, possesses armor piercing ammunition, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime or conviction under this section—

(A) be sentenced to a term of imprisonment of not less than 15 years; and

(B) if death results from the use of such ammunition—

(i) if the killing is murder (as defined in section 1111), be punished by death or sentenced to a term of imprisonment for any term of years or for life; and

(ii) if the killing is manslaughter (as defined in section 1112), be punished as provided in section 1112.