Respondents Brief — Rutledge v. United States
Supreme Court brief1996
Ask Donna
What actually matters in this document.
Text
REST AVAIL ARIE COPY
QUESTION PRESENTED
Whether petitioner’s conviction and concurrent
sentence for drug conspiracy, in violation of 21 U.S.C.
846, must be vacated in light of his conviction and
sentence for operating a continuing criminal enter-
prise (CCE), in violation of 21 U.S.C. 848, where
the “in concert with” element of the CCE violation
was based on the same agreement as the Section 846
conspiracy.
(I)
TABLE OF CONTENTS
1
1
Statutory provisions involved ...............ccccccceeeeeeeeeeeeeeees 2
iia erreenesnsennnennengenaunssnaneesecess 2
4
Argument:
I. Petitioner’s judgments of conviction and con-
current life sentences for the CCE and drug
conspiracy offenses should be affirmed ............. 6
A. The Double Jeopardy Clause permits mul-
tiple punishinent for the CCE and drug
conspiracy offenses if that is the intention
GD ectemerstccnsnnctecnescscccesenececccsncceseceeee &
B. Congress intended to permit separate, con-
current punishments for a Section 846 drug
conspiracy and CCE offense based on the
SAME AGTECEIMENL ............0.ccesrerressecseceererseseres 12
Il. If the Court concludes that the entry of sepa-
rate convictions and concurrent sentences con-
travenes congressional intent, the appropriate
course would be to require entry of a single,
merged conviction and sentence on the two
IIIT isis ieleseia teri tenineemmanesencenmnanqncenesenseneaseseece 24
EES A ES OT 31
BE ccteenceseentenecensccnscccsnsccscenessevesenzseccecsesscccscnceseneeee la
TABLE OF AUTHORITIES
Cases:
Albernaz v. United States, 450 U.S. 333 (198]) ...... 8
Ball v. Unwed States, 470 U.S. 856 (1985) . 8, 17, 18,
19, 20, 22, 26
Bell v. United States, 349 U.S. 81 (1955) ................ ll
Blockburger v. United States, 284 U.S. 299 (1932) . 8
Garrett v. United States, 471 U.S. 773 (1985) ........ 8,17
Gore v. United States, 357 U.S. 386 (1958) ............. ll
lannelli v. United States, 420 U.S. 770 (1975) ........ 10
(IID)
IV Vv
ROBE) ..ccccccccccccccccsccceccsccsccsscsscssessscssossosessososesscoscesess 27
Cases—Continued: Page
Jeffers v. United States: ;
2 OS. CBG oicccsiceen 13 Cases—Continued: Page
432 U.S. 187 (1977) .............0..+. 9, 10, 12, 13, 15, 17 United States v. Devine, 934 F.2d 1325 (5th Cir.),
Missouri v. Hunter, 459 U.S. 359 (1983) ................ ~ cert. denied, 502 U.S. 929 (1991), 502 U.S. 1047,
Ohio v. Johnson, 467 U.S. 493 (1984) ...............000. 8 1064, 1065, 1092 & 1104 (1992) oo... cecceeeeeeeeeeees 12
Ray v. United States, 481 U.S. 736 (1987) .............. 7, 27 United States v. Fernandez, 916 F.2d 125 (3d Cir.
Tinder v. United States, 345 U.S. 565 (1953) .......... 26 1990), cert. denied, 500 U.S. 948 (1991) ......0000000..... 14
United States v. Aiello, 771 F.2d 621 (2d Cir. United States v. Ganci, 47 F.3d 72 (2d Cir. 1995) .. 12
SEED -occusenesoensncensesasintiinashensthinanieimmiemmeasemeens 25, 29 United States v. Hernandez-Escarsega, 886 F.2d
United States v. Andersson, 813 F.2d 1450 (9th 1560 (9th Cir. 1989), cert. denied, 497 U.S. 1008
Cr, GID ceceecesinsseeretinindininniihceaianinantiiiaiinitediains 28 AEA eS ee 28
United States v. Ball, 734 F.2d 965 (4th Cir. 1984), United States v. Hooper, 432 F.2d 604 (D.C. Cir.
vacated and remanded, 470 U.S. 856 (1985) ............ 18 hilt cencine nineteen neal tatererentenenenen 27
United States v. Benevento, 836 F.2d 60 (2d Cir. United States v. Jelinek, 57 F.3d 655 (8th Cir.
1987), cert. denied, 486 U.S. 1043 (1988) ................. 25-26 1995), petition for cert. pending. No. 95-5343 ......... 15, 30
United States v. Bond, 847 F.2d 1233 (7th Cir. United States v. Lampley, 573 F 2d 783 (3d Cir.
SUED nn suesinsienennsniieatnliiaietaimiaidliameneeaiahi 12, 21 ee en 27
United States v. Broce, 488 U.S. 563 (1989) ........... 11 United States v. Langella, 804 F 2d 185 (2d Cir.
United States v. Butera, 677 F.2d 1376 (11th Cir. EE ane Ta ae a ee a en ll
1982), cert. denied, 459 U.S. 1108 (1983) ..............-.. 27 United States v. Lindsay, 985 F 2d 666 (2d Cir.),
United States v, Butler, 885 F.2d 196 (4th Cir. cert. denied, 114 S. Ct. 103 (1998) 0000.00 12, 25
ae 30 United States v. Liquori, 5 F.3d 435 (9th Cir. 1993),
United States v. Chamt , 944 F.2d 1253 (6th Cir. cert. denied, 114 S. Ct. 738 (1994) eaesscescsosesssessessccece 23
1991), cert. denied, 502 U.S. 1112 & 503 U.S. 989 United States v. Luciano-Mosquera, Nos. 92-1923
COO isamssssitcitenieinieaiettceeal dada 12, 15, 30 et al., 1995 WL 500601 (1st Cir. Aug. 28, 1995)........ 29
United States v. Cloutier, 966 F.2d 24 (ist Cir. United States v. Marable, 578 F.2d 151 (5th Cir.
Ss neesieeniieesannaaitiidanentle 30 ge in eee neler hs VR. Se lies suka. 11
United States v. Compton, 5 F.3d 358 (9th Cir. United States v. McHan, 966 F.2d 134 (4th Cir.
a 28 SEED pictenrcuscnernmnnpsevesmsetiiiataninantitmettinittnicemtens 11
United States v. Cruz, 805 F.2d 1464 (11th Cir. United States v. Nelson, 733 F.2d 364 (5th Cir.),
1986). cert. denied, 481 U.S. 1006 & 482 U.S. 930 cert. denied, 469 U.S. 937 (1984) ..00........0.0cccccccceeee
rt Oe 30 United States v. Nyhuis, 8 F.3d 731 (11th Cir.
United States v. De Bright, 730 F.2d 1255 (9th Cir. 1993), cert. denied, 115 S. Ct. 56 (1994) 0.0.0.0... 12
United States v. Palafox, 764 F.2d 558 (9th Cir.
SEED cncqmsteensertannnndticibanieininstianttaiai tit. ic. 27, 28
Cases—Continued: Page
United States v. Peters, 617 F.2d 503 (7th Cir.
|
BIE) ceccceccscccecesenscenusssesesusnsucnsiiieninmnsnsinsnndmmensibiesns
United States v. Ruggiero, 754 F.2d 927 (11th Cir.),
cert. denied, 471 U.S. 1127, 1137 (1985) ..................
United States v. Sanchez-Lopez, 879 F.2d 541 (9th
CEP. GEER cccocccccccescantonssescsssassesecsiensnindisannetuinmesensennte
United States v. Sanchez-Vargas, 878 F.2d 1163
CBs GRR. TERED cccccscsssceaninssnscesasesnmsennssitieemuemnnann
United States v. Shabani, 115 S. Ct. 382 (1994) .....
United States v. Vargas, 615 F.2d 952 (2d Cir.
DEED ctrccceccersccssensenssnmnnsinsntininetindinniianieninentiintds
United States v. Wilson:
440 F.2d 1103 (5th Cir.), cert. denied, 404 U.S. 882
(1971) & 405 U.S. 1016 (1972) ...........cccccceceeeeeeeees
671 F.2d 1138 (8th Cir.), cert. denied, 456 U.S. 994
§
Constitution, statutes and Sentencing Guidelines:
U.S. Const. Amend. V (Double Jeopardy Clause)
covccccesssesesssssuseneueTeSeseemseqneeEDSUERIEDGDEeeEne 4, 8, 10, 12, 13
Sentencing Reform Act of 1984, Pub. L. No. 98-473,
Tit. Il, Ch. 1, 98 Stat. 1987:
FG eye
PG eee
2) §
RO _————————EE
Ge
18 U.S.C. App. 1202(a)(1) (1982) ............cccccceeeeceeeeeees
_————————— 2, 4, 7,
21 U.S.C. 802(43) (to be codified in 1994 edition) .......
BB ULC. GERRRIED cceccccsstescccssscctsissestiinicsminnteninnedl
EE
BE WEB. GED cceccescssccceccscseccasessccesesccneggesscesscase passim, la
OR GLEE, GD ccncecncssengsesscpinemnimriommnenn 2, 16, la
Be Wii GED ccccnsccscrescresssntinecrteiiemenmeta 2, la-ba
Vil
Statutes and Sentencing Guidelines—Continued: Page
ae SEITE liditcentrtendstesconsonsnnasiohenaiteussenereentenemcwtoces 16, 2a
ee ITI tinnshatnticccsnsustccntenstemmenneenmnetinnecsscess 3, 3a
BO 9, 3a
fk. Se 19, 3a
| Sf EE 19, 3a
|) |S 16, 4a
Sentencing Guidelines:
ENED Seeiieteitietnteeenensictadecnsepecesindenenesasedesensesesesersceces 22
§ 4A1.2, Application Note 3 .................:ccccccceeseeeeeees 23
DP IED ttedictecsdcesencenemantsesstncsecenstenrueenstnnisebesoes 23
Jn the Supreme Court of the United States
OCTOBER TERM, 1995
No. 94-8769
TomMy L. RUTLEDGE, PETITIONER
v.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES
OPINION BELOW
The opinion of the court of appeals (J.A. 25-47) is
reported at 40 F.3d 879.
JURISDICTION
The judgment of the court of appeals was entered on
November 10, 1994. A petition for rehearing was de-
nied on January 3, 1995. J.A. 48. The petition for a
writ of certiorari was filed on April 3, 1995, and was
granted on June 26, 1995. J.A. 49. The jurisdiction of
this Court rests on 28 U.S.C. 1254(1).
(1)
STATUTORY PROVISIONS INVOLVED
This case involves the following statutory provi-
sions, which are set forth in an appendix to this brief:
21 U.S.C. 846 (drug conspiracy); 21 U.S.C. 848(a)-(e)
(continuing criminal enterprise).
STATEMENT
After a jury trial in the United States District
Court for the Central District of Illinois, petitioner
was convicted of operating a continuing criminal
enterprise (CCE) (Count 1), in violation of 21 U.S.C.
848; conspiring to distribute cocaine (Count 2), in
violation of 21 U.S.C. 846; distributing cocaine (Count
3), in violation of 21 U.S.C. 841(a)(1); possessing a
firearm after being convicted of a felony (Count 4), in
violation of 18 U.S.C. 922(g); and using or carrying a
firearm during and in relation to a drug trafficking
offense (Counts 5, 6), in violation of 18 U.S.C. 924(c).
J.A. 8-9. He was sentenced to concurrent terms of life
imprisonment without possible release for the CCE,
drug conspiracy, and distribution of cocaine offenses,
and other terms of imprisonment for the other
offenses. He was not fined, but he was ordered to pay
a special assessment on each Count of $50 under 18
U.S.C. 3013. J.A. 9-10. The court of appeals affirmed.
J.A. 25-47.
1. Petitioner was the leader of a large drug
organization that distributed multi-kilogram quan-
tities of cocaine from 1988 to 1990. He bought cocaine
from the Latin Kings street gang in Chicago and
distributed it in Warren County, in northern Illinois.
Petitioner kept firearms for protection, and he also
traded firearms for cocaine. J.A. 26-28.
2. The second superseding indictment charged
petitioner with the six offenses recited above. J.A. 2-
7. In order to convict petitioner on the CCE charged
in Count 1, the jury had to find that petitioner com-
mitted a felony drug offense in violation of Sub-
chapter I or II of Chapter 13 of Title 21, as part of
a continuing series of such violations, which were
undertaken “in concert with” five or more other
persons of whom the defendant was an organizer,
supervisor, or manager, and from which he obtained
substantial income or resources. 21 U.S.C. 848(c);
J.A. 2-3. In order to convict petitioner of the drug
conspiracy charged in Count 2, the jury was required
to find that petitioner conspired to possess cocaine
with intent to distribute it and that he distributed
cocaine. The Count 2 drug conspiracy charge was
based on the same criminal agreement that formed
the basis of the “in concert with” element of the
Count 1 CCE charge; it involved the same persons,
the same time periods, and the same overt acts. J.A.
2-5.
All counts were submitted to the jury and the jury
returned guilty verdicts on all of them. J.A. 8.
3. The district court sentenced petitioner to
concurrent terms of life imprisonment without
possible release for the Count 1 CCE offense, the
Count 2 drug conspiracy offense, and the Count 3
substantive cocaine-distribution offense. J.A. 10. The
court also imposed ten years’ imprisonment for the
Count 4 offense of possession of a firearm as a
convicted felon, to run concurrently with the three
life sentences; five years’ imprisonment for the Count
5 offense of using or carrying a firearm during and in
relation to a drug trafficking offense, to run con-
secutively to all other sentences, and ten years’
imprisonment for the like offense under Count 6, to
run consecutively to all other sentences. Jbid. The
court imposed the $50 special assessment under 18
U.S.C. 3013 on each count, for a total of $300. J.A. 9.
4. The court of appeals affirmed. J.A. 25-47. Peti-
tioner claimed that his conviction and sentence on
both the CCE and the drug conspiracy charge violated
the Double Jeopardy Clause, because it amounted to
punishing him twice for the same offense. The court
of appeals rejected that claim, reasoning that, “[wJhile
the conspiracy charge is a lesser included offense of
the CCE charge, double jeopardy is not implicated as
long as [the] district court does not impose cumu-
lative sentences for the crimes.” J.A. 37-38. The
court held that, “by imposing concurrent sentences,
the district court did not impose a cumulative penalty,
and [petitioner’s] sentence is proper.” J.A. 38.
SUMMARY OF ARGUMENT
It is well settled that a defendant may be indicted,
tried, and found guilty by a jury in a single proceeding
of both violating the CCE statute and committing a
drug conspiracy in violation of 21 U.S.C. 846, where
the same agreement is involved in both offenses. The
question in this case is whether a court may enter
dual convictions and concurrent sentences based on a
jury verdict that finds the defendant guilty of both the
CCE and the conspiracy charge. As with other ques-
tions about whether multiple punishments may be
imposed in a single proceeding for the same offense,
the answer to that question turns on congressional
intent. In our view, the structure, legislative history,
and purposes underlying the CCE and drug con-
spiracy statutes indicate that Congress intended that
a defendant convicted of both be subject to dual con-
victions and concurrent sentences.
While the conduct prohibited by the CCE and drug
conspiracy statutes is related, the two provisions
differ substantially. The elements of each offense and
the punishments for each offense are defined in dis-
tinct statutes that do not refer to each other. More-
over, the CCE offense is a hybrid conspiracy/
substantive offense that is fundamentally different
from the “pure” Section 846 drug conspiracy offense.
As a result, many “simple” drug conspiracy cases will
not involve commission of a CCE offense by anyone,
and in others at least some of the defendants who
conspired to distribute drugs would not have violated
the CCE statute. Accordingly, it is reasonable to in-
fer that Congress intended that separate convictions
be entered when a defendant violates both the drug
conspiracy and CCE statutes, even though Congress
may not have intended that the total sentence exceed
what would be imposed for the more serious of the two
offenses (normally, the CCE).
An additional important reason for inferring that
Congress intended to permit entry of dual convictions
and concurrent sentences is that this procedure is
the simplest and most rational way to ensure that,
if a defendant’s CCE conviction is ultimately over-
turned on appeal or collateral attack, he would still
be punished for his commission of a Section 846
drug conspiracy. Congress would not have wanted
to permit such a defendant to escape punishment, or
to require complicated procedures for its imposition.
And there is no reason to think that Congress would
have wished to protect a defendant from the possible
adverse consequences flowing from the entry of the
second conviction, because a defendant convicted of a
CCE offense is not likely to experience collateral
consequences from the entry of a drug conspiracy
conviction when that conviction carries a concurrent
sentence with the CCE.
If the Court holds that Congress did not intend to
permit dual convictions and concurrent sentences,
the Court must determine the procedure a district
court should follow when a jury returns verdicts of
guilty on CCE and drug conspiracy charges based on
the same agreement. In our view, the most efficient
and workable approach is that adopted by the Second
Circuit, under which the two verdicts of guilty on the
CCE and Section 846 drug conspiracy counts merge
into a single judgment of conviction, with a single
sentence that can be no greater than the sentence
that would have been imposed for the more serious of
the two offenses. Under that approach, the defendant
suffers no conceivable adverse consequences. The
government, however, is ensured that, if the CCE
conviction (but not the drug conspiracy conviction) is
ever reversed, a court can still punish the defendant
for the Section 846 drug conspiracy of which the jury
found him guilty.
ARGUMENT
I. PETITIONER'S JUDGMENTS OF CONVICTION
AND CONCURRENT LIFE SENTENCES FOR
THE CCE AND DRUG CONSPIRACY OFFENSES
SHOULD BE AFFIRMED
Petitioner was convicted of a Section 846 drug
conspiracy and of violating the CCE statute. Both
the Section 846 drug conspiracy and the “in concert
with” element of the CCE offense were satisfied by
proof of the same agreement. The Seventh Circuit
held that, in those circumstances, the district court
properly entered a separate conviction for each of the
two offenses and imposed concurrent prison senten-
ces for the two offenses. Petitioner was not subjected
to a longer term of imprisonment than he would have
received for the CCE offense alone and, since no fine
was imposed, he was not subjected to a greater fine
than he would have received for the CCE offense
alone. In our view, that disposition accords with
congressional intent regarding dual punishment for
CCE and a Section 846 drug conspiracy based on the
same agreement. The judgment of the Seventh Cir-
cuit should therefore be affirmed.’
' We note that the judgments on the CCE and the drug
conspiracy counts were not concurrent in one respect: a special
assessment of $50 under 18 U.S.C. 3013 was imposed on peti-
tioner for each of those counts. J.A. 9; see Ray v. United
States, 481 U.S. 736, 737 (1987) (per curiam). Petitioner, how-
ever, did not challenge the imposition of those two special
assessments either in the court of appeals or in this Court, and
the question presented by the petition presupposes that the two
sentences are fully concurrent. See Pet. i; Pet. Br. i. There-
fore, it is not necessary to decide in this case whether it is
permissible to impose a special assessment as well as a separate
judgment of conviction on both the CCE and drug conspiracy
offenses. If it were necessary to reach that question, however,
the result would in our view turn.on whether CCE and a
Section 846 drug conspiracy are in fact the “same offense” and
therefore subject to only a single assessment under 18 U.S.C.
3013. For the reasons given in note 5, infra, we believe that
they are not, strictly speaking, the “same offense,” and that
separate $50 special assessments on each count are therefore
appropriate.
A. The Double Jeopardy Clause Permits Multiple
Punishment For The CCE And Drug Conspiracy
Offenses If That Is The Intention Of Congress
The Double Jeopardy Clause provides: “[NJor shall
any person be subject for the same offence to be twice
put in jeopardy of life or limb.” U.S. Const. Amend. V.
The only aspect of the protection afforded by that
Clause at issue in this case is the protection against
multiple punishments for the same offense. See
Missouri v. Hunter, 459 U.S. 359, 365-366 (1983). The
Court has made clear that, in a single proceeding, the
government may prosecute a defendant for multiple
offenses that are constitutionally the “same offense”
without violating the Double Jeopardy Clause. Ohio
v. Johnson, 467 U.S. 493, 500 (1984); see also Ball v.
United States, 470 U.S. 856, 865 (1985). And when the
defendant is convicted in a single proceeding of two
offenses that are constitutionally the same, “the
Double Jeopardy Clause does no more than prevent
the sentencing court from prescribing greater pun-
ishment than the legislature intended.” Garrett
v. United States, 471 U.S. 773, 793 (1985), quoting
Missouri v. Hunter, 459 U.S. at 366; see Albernaz
v. United States, 450 U.S. 333, 344 (1981) (“[T]he
question of what punishments are constitutionally
permissible [in a single proceeding] is not different
from the question of what punishments the Legis-
lative Branch intended to be imposed.”).
Normally, the Court determines whether two of-
fenses are the “same” for double jeopardy purposes
by determining whether each requires proof of an
element that the other does not. See Blockburger v.
United States, 284 U.S. 299 (1932). The CCE offense
and the drug conspiracy offense are related to each
other, if at all, through one element. Among the
elements of a CCE violation is proof of “a continuing
series of violations of [Subchapters I or II of Chap-
ter 13 of Title 21] * * * which are undertaken by
[the defendant] in concert with five or more other
persons.” 21 U.S.C. 848(c)(2) (emphasis added). A
Section 846 drug conspiracy violation is established
by proof that the defendant “conspire[d] to commit
any offense defined in [Subchapter I of Chapter 13 of
Title 21].” If proof of the “in concert with” element of
the CCE violation requires proof that the defendant
“conspire[d}” to commit a Subchapter I drug offense,
then a drug conspiracy in violation of Section 846 may
be viewed as a lesser included offense of the CCE
offense.
In Jeffers v. United States, 432 U.S. 137 (1977), the
Court considered, but did not resolve, the question
whether a drug conspiracy is a lesser included offense
of a CCE when the two charges rest on the same
agreement. Four Justices, in a plurality opinion
written by Justice Blackmun, assumed without decid-
ing that drug conspiracy may be a lesser included
offense of the CCE offense. Jd. at 150 & n.16.* Four
2 Justice Blackmun’s opinion merely “assume[d]” and did
not actually decide that the CCE and drug conspiracy offenses
were the “same offense” in this context. See 432 U.S. at 149-
150 & n.16 (opinion of Blackmun, J.); id. at 155 (“We have
concluded that [Congress did not intend to allow cumulative
punishment for violations of §§ 846 and 848], and this again
makes it unnecessary to reach the lesser-included-offense
issue.”). For purposes of rejecting Jeffers’ claim that he could
not be prosecuted sequentially for the two offenses, it was
necessary only to assume, not decide, the same-offense ques-
tion: The plurality concluded that he could be prosecuted
sequentially under the facts of the case whether or not the two
10
other Justices, in an opinion by Justice Stevens,
apparently would have accepted that proposition with-
out qualification. Jd. at 158-159 (opinion of Stevens, J.,
dissenting in part and concurring in the judgment in
part). Justice White, writing for himself, took the
view that CCE and drug conspiracy offenses were
never the same offense. Jd. at 158 (White, J., con-
curring in the judgment in part and dissenting in
part).”
In our view, this case may be resolved on the same
assumption made by the plurality in Jeffers, i.e., that
a Section 846 drug conspiracy may be regarded as a
lesser included offense of CCE, when as a factual
matter both offenses involved the establishment of the
same criminal agreement.’ If the assumption made by
offenses were the “same offense.” Likewise, it was necessary
only to assume, not decide, that the two offenses were the
“same offense” for purposes of deciding the double-punishment
issue: If, as the plurality concluded, Congress did not intend
cumulative sentences when the CCE and drug conspiracy
offenses were based on identical criminal agreements, then a
court had no statutory authority to impose cumulative sen-
tences regardless of whether the two crimes were the “same
offense” under the Double Jeopardy Clause.
3 Justice White relied on the rationale of Jannelli v. United
States, 420 U.S. 770 (1975), and therefore concluded that the
CCE and drug conspiracy offenses could support separate
prosecutions, as well as separate punishments. 432 U.S. at 158.
4 Even if that assumption is correct, a particular charged
Section 846 conspiracy would not necessarily be a lesser
included offense of a particular charged CCE offense. Such a
relationship would exist only if proof of the greater offense on
the facts of the particular case necessarily proves all ele-
ments of the lesser offense. For example, although assault is
generally a lesser included offense of murder, a defendant
who assaults one individual and then murders another has
11
the Jeffers plurality is correct, then the issue in this
case is whether, and to what extent, Congress in-
tended separate punishments for a CCE offense and
a lesser included drug conspiracy. But even if that
assumption is not correct, the same analysis would
determine the outcome in this case, because a federal
court in any event has only the sentencing authority
granted by Congress and is limited to imposing the
punishment authorized by Congress. See, e.g., Gore v.
United States, 357 U.S. 386 (1958); Bell v. United
States, 349 U.S. 81 (1955). Accordingly, we proceed on
the basis of the Jeffers assumption.°
committed two entirely distinct offenses. Similarly, even if a
Section 846 drug conspiracy is a lesser included offense of a
CCE, the two would be entirely distinct if the agreement on
which the Section 846 conspiracy is based is distinct from the
agreement on which the “in concert with” element of the CCE
is based. The courts of appeals have long employed a multi-
factor, totality-of-the-circumstances test to determine whether
two charged agreements that form the basis for two conspiracy
or CCE charges are in fact the same. See, e.g., United States
v. McHan, 966 F.2d 134, 137-138 (4th Cir. 1992); United States
v. Langella, 804 F.2d 185, 189 (2d Cir. 1986); United States v.
Ruggiero, 754 F.2d 927, 932 (11th Cir.), cert. denied, 471 U.S.
1127,-1137 (1985); United States v. Marable, 578 F.2d 151, 154
(5th Cir. 1978); ef. United States v. Broce, 488 U.S. 563, 585 n.2
(1989) (Blackmun, J., dissenting). The application of that test
is not at issue in this case, because all parties to this case agree,
as in Jeffers, that the Section 846 drug conspiracy with which
petitioner was charged is based on the same agreement as the
“in concert with” element of the CCE.
5 The government contended in Jeffers that drug con-
spiracy is not a lesser included offense of the CCE offense,
because the “in concert with” element does not require proof of
a conspiracy. See U.S. Br. in Jeffers at 23, No. 75-1805. Our
argument was that a CCE defendant may be found to have
acted “in concert with” others so long as the defendant acted
12
B. Congress Intended To Permit Separate, Con-
current Punishments For A Section 846 Drug
Conspiracy And CCE Offense Based On The
Same Agreement
1. The Seventh Circuit’s approach to the issue in
this case—permitting two convictions and concurrent
sentences—mirrors the result in Jeffers.’ In Jeffers,
the defendant—like petitioner—was convicted of a
Section 846 drug conspiracy and CCE. He was
sentenced to the maximum applicable punishment of
15 years’ imprisonment and a $25,000 fine for the
Section 846 drug conspiracy, see 432 U.S. at 143
with criminal intent, even if the other participants in the
enterprise were unaware of the true criminal character of the
enterprise and thus were not conspirators with him. Although
we adhere to that position, the courts of appeals have not
generally accepted it in recent years. See J.A. 37-38; United
States v. Nyhuis, 8 F.3d 731, 735 (11th Cir. 1993), cert. denied,
115 S. Ct. 56 (1994); United States v. Lindsay, 985 F.2d 666, 670
(2d Cir.), cert. denied, 114 S. Ct. 103 (1993); United States v.
Chambers, 944 F.2d 1253, 1268 (6th Cir. 1991), cert. denied,
502 U.S. 1112 and 503 U.S. 989 (1992); United States v. Devine,
934 F.2d 1325, 1342 (5th Cir.), cert. denied, 502 U.S. 929 (1991),
502 U.S. 1047, 1064, 1065, 1092 & 1104 (1992). As discussed,
however, this case in any event turns on congressional intent,
not whether the CCE and drug conspiracy statutes define the
same offense for double jeopardy purposes. Accordingly, in
our view, it is not necessary to resolve that issue in this case.
6 See United States v. Bond, 847 F.2d 1233, 1239 (7th Cir.
1988) (“Jeffers treated [CCE and a Section 846 drug con-
spiracy] as sufficiently distinct to support separate convictions
(even to allow sequential trials), but not sufficiently distinct to
support cumulative punishments.”); see also United States v.
Ganci, 47 F.3d 72, 73 (2d Cir. 1995) (citing Jeffers for the
proposition that dual convictions for CCE and drug conspiracy
do not violate the Double Jeopardy Clause).
13
(opinion of Blackmun, J.), and he was sentenced to a
concurrent term of life imprisonment and a separate
fine of $100,000 for the CCE, id. at 145. This Court
did not require either of the convictions or either of
the prison sentences to be vacated. It did, however,
roll back the CCE fine to $75,000 “so that the two
fines together do not exceed $100,000,” id. at 158, the
statutory maximum fine for the CCE offense at that
time and the amount that would have been imposed
had the defendant been convicted only of the CCE
offense. '
Jeffers differs from this case in one respect. Un-
like in this case, in Jeffers the Section 846 drug
conspiracy and the CCE conviction were separately
prosecuted. This Court declined to review Jeffers’
Section 846 conviction. See Jeffers v. United States,
423 U.S. 1066 (1976). Therefore, the Court had before
it only the CCE conviction and sentence. Moreover,
since the Court concluded that the separate prose-
cution of the CCE and drug conspiracy charges did
not violate the Double Jeopardy Clause’s protection
against multiple prosecutions, see 432 U.S. at 147-
154 (opinion of Blackmun, J.); id. at 158 (White, J.,
’ The four-Member plurality represented by Justice Black-
mun’s opinion, together with Justice White (who believed that
CCE and a drug conspiracy were entirely distinct offenses,
see 432 U.S. at 158), formed a majority for affirming the
conviction and prison sentence. Eight Members of the Court—
all but Justice White—voted in favor of partially rolling back
the fine. See id. at 154-158 (opinion of Blackmun, J.); id. at
158-160 (Stevens, J., dissenting in part and concurring in
the judgment in part). In view of Justice White’s opinion,
petitioner errs in stating (Br. 10) that the Court was
“unanimous[]” in holding that cumulative punishments for
CCE and drug conspiracy were barred.
14
concurring in the judgment in part and dissenting in
part), it would have given the defendant a windfall if
the Court had nonetheless reversed his conviction or
sentence on the more serious offense, the later prose-
cuted CCE charge. Accordingly, the Court’s dispo-
sition of the two convictions in Jeffers does not,
strictly speaking, govern the disposition of a case like
this, in which the defendant was tried in a single
proceeding for both CCE and a Section 846 drug
conspiracy, and in which the Court has before it both
convictions and sentences. We nevertheless believe
that the result in Jeffers appropriately reflects Con-
gress’s intent with regard to punishment in cases
in which the defendant is convicted of CCE and
of a Section 846 drug conspiracy based on the same
agreement.”
2. Petitioner argues (Br. 10) that “the Court [in
Jeffers] concluded * * * that Congress did not
intend to authorize cumulative punishment for con-
duct that violates both the conspiracy and CCE
statutes, and that the Double Jeopardy Clause there-
fore bars such cumulative punishment.” If petitioner
intends to suggest that the Court determined in
Jeffers that Congress intended to bar dual convictions
* The Third Circuit’s approach to cases of this sort is some-
what similar to that of the Seventh Circuit. When a defendant
is convicted of CCE and a Section 846 drug conspiracy based on
the same agreement, the Third Circuit permits the sentencing
court to enter two convictions and a single, general sentence on
both counts, not to exceed the punishment available on the most
serious offense. See United States v. Fernandez, 916 F.2d 125
(3d Cir. 1990), cert. denied, 500 U.S. 948 (1991). We believe
that the Seventh Circuit’s concurrent sentence approach is the
better practice and more precisely coincides with the result in
Jeffers.
15
and concurrent sentences for CCE and Section 846
drug conspiracy, he is mistaken. As explained above,
the Court in Jeffers left intact the defendant’s dual
convictions and concurrent sentences. The decision
thus could not be read to prohibit them. Instead, the
plurality in Jeffers used the term “cumulative senten-
ces” to refer to a different issue: the permissibility of
“pyramiding” sentences, i.e., permitting consecutive
sentences that resulted in total punishment greater
than would have been imposed for the more serious of
the two offenses.’ The plurality found such “cumu-
lative penalties” to be improper. 432 U.S. at 157
(opinion of Blackmun, J.) (concluding that “Congress
did not intend to impose cumulative penalties un-
der §§ 846 and 848”); see also id. at 160 (opinion
of Stevens, J.) (concurring in the judgment “to
the extent that it vacates the cumulative fines”).
But, since petitioner was not subject to that sort
of “cumulation” or “pyramiding” of penalties, the
Court’s decision in Jeffers provides no support for his
position that the mere entry of dual convictions and
concurrent sentences is impermissible.”
® Jeffers, 4832 U.S. at 156-158 (opinion of Blackmun, J.)
(discussing the issue of “pyramiding,” and concluding that the
sentencing court had “no power * * * toimpose * * * a fine
greater than the maximum permitted by § 848” for the two
convictions). Ordinarily, the penalty for violating the CCE
statute is higher than that for violating Section 846. There
may be some unusual situations, however, in which the
application of the Sentencing Guidelines leads to the opposite
result. See, e.g., United States v. Jelinek, 57 F.3d 655, 660 (8th
Cir. 1995), petition for cert. pending, No. 95-5343; United
States v. Chambers, 944 F.2d at 1268-1269.
” As petitioner observes (Br. 11), since Jeffers was decided,
Congress has amended both the CCE and drug conspiracy
16
3. An examination of the structure, history, and
purposes of the CCE and drug conspiracy statutes
confirms that the Jeffers result is what Congress
intended. Congress did not structure the CCE of-
fense simply as a multiplier or aggravation of a Sec-
tion 846 drug conspiracy. The CCE offense is defined
in a separate statutory provision, 21 U.S.C. 848. That
definition of the CCE offense makes no reference
to Section 846, the drug conspiracy statute, just
as Section 846 defines the drug conspiracy offense
without reference to the CCE statute. Moreover, the
definition of a CCE creates a complex, hybrid offense,
which has aspects of both an offense requiring
concerted activity (“in concert with”) and a sub-
stantive offense (requirement of commission of “a
continuing series of [drug] violations * * * from
which [the defendant] obtains substantial income or
resources”). By contrast, Section 846 defines a pure
conspiracy offense; there is no requirement that any
overt act be committed. United States v. Shabani,
115 S. Ct. 382 (1994). The penalties for CCE are also
prescribed independently of the penalties for any
other drug offense, and they are among the most
severe penalties in federal law. See 21 U.S.C. 848(b)
(life imprisonment without possibility of release); 21
U.S.C. 848(e) (death penalty). The penalties for a
Section 846 drug conspiracy depend on the penalties
statutes, but has elected not to modify the penalty scheme in
any respect that bears on the question of multiple punishments.
That cannot be construed as congressional acquiescence in a
rule that dual convictions and concurrent sentences are imper-
missible for CCE and a Section 846 drug conspiracy based on
the same agreement, since neither Jeffers nor any other case
decided by this Court adopted such a rule.
17
prescribed for the crimes that are the object of the
conspiracy, and do not refer to or depend on the
penalties set forth for CCE.
All of those features suggest that Congress in-
tended to create a distinct statutory offense when it
enacted the CCE statute, and that it viewed the
commission of that offense as an order of magnitude
more serious than the participation in a simple
Section 846 drug conspiracy. In light of those distinc-
tions, it is appropriate to presume that Congress
intended to permit dual convictions with concurrent
sentences for violation of the drug conspiracy statute
and the CCE offense, particularly in view of the
practical disadvantages to the government of a con-
trary rule and the absence of adverse collateral
consequences to a defendant from the entry of such a
judgment, see pp. 20-24, infra. It is true that the
Jeffers plurality found that Congress did not intend to
permit “pyramiding” of penalties for CCE by impos-
ing consecutive terms of imprisonment or cumulative
fines for violations of CCE and Section 846 based
on the same agreement. 432 U.S. at 156 (opinion of
Blackmun, J.). See also Garrett, 471 U.S. at 794-795
(stating that Jeffers plurality “reasonably concluded”
that there would be little purpose in imposing
cumulative penalties). But that does not mean that
Congress intended to bar dual convictions and con-
current prison sentences for violation of the CCE and
drug conspiracy statutes, so long as the total prison
term and fine does not exceed that which would have
been imposed for the CCE violation alone.
4. The decision in Ball v. United States, 470 U.S.
856 (1985), on which petitioner places his primary
reliance/ (see Pet. Br. 12-19), does not require a
18
contrary conclusion. In Ball, the defendant, who had
previously been convicted of a felony, was charged
with receiving a firearm as a convicted felon, in
violation of 18 U.S.C. 922(h)(1) (1982), and for pos-
sessing that same firearm as a convicted felon, in
violation of 18 U.S.C. App. 1202(a)(1) (1982). The trial
court imposed consecutive sentences for the two
convictions, and the court of appeals accepted the
government’s concession that such consecutive sen-
tences were improper. The court of appeals held that
Congress “did not authorize pyramiding penalties,”
470 U.S. at 858 (quoting United Siates v. Ball, 734
F.2d 965, 966 (4th Cir. 1984)), and ordered that the
sentences be modified to run concurrently.
This Court held that it was permissible to indict
and try a defendant on both counts, even when “a
single act is relied upon to establish [the defendant’s]
unlawful receipt and his unlawful possession of the
same firearm.” 470 U.S. at 859. But, the Court held,
“(ajll guides to legislative intent * * * show that
Congress intended a felon in [the defendant’s] position
to be convicted and punished for only one of the two
offenses if the possession of the firearm is incidental
to receiving it.” Jd. at 861. Because Congress in-
tended only one conviction and, a fortiori, only one
punishment to be imposed, “(t]he remedy of order-
ing one of the sentences to be served concurrently
with the other cannot be squared with Congress’
intention.” Jd. at 864. Accordingly, the Court re-
manded for the district court to vacate one of the
convictions. Id. at 865.
Unlike in Ball, “{aJll guides to legislative intent”
do not suggest that Congress wanted to preclude dual
convictions and concurrent sentences in this case.
19
The structural relationship, purposes, and history of
the offenses at issue in Ball—receiving and posses-
sing a gun—differ significantly from the offenses at
issue in this case. In addition, the practical conse-
quences of permitting dual convictions and concur-
rent sentences in Ball differ substantially from the
consequences of doing so in the context of this case.
_ @ Initially, the overlap between the offenses of
illegally receiving and possessing a gun as a
convicted felon is virtually complete. All cases of
illegal receipt of a gun are also cases of illegal
possession. Ball, 470 U.S. at 862. And virtually all
cases of illegal possession are also cases of illegal
receipt; the only exception would appear to be the
extraordinary cases in which the defendant manu-
factured the gun himself. Jd. at 862 n.9. Thus,
Congress would reasonably have expected that
convicted felons who possess guns will always—or
virtually always—be guilty of both offenses, and there
is no reason to think that Congress would have
intended more than one conviction and sentence to be
entered for that form of violation.
The same cannot be said for CCE and a Section 846
drug conspiracy; many drug conspiracy cases will not
involve commission of a CCE offense by anyone.
Moreover, even where some of the members of a
Section 846 drug conspiracy also commit the CCE
offense, others—who did not “occup[y] a position of
organizer, a supervisory position, or any other
position of management,” 21 U.S.C. 848(c)(2)(A), or
who did not “obtain{] substantial income or re-
sources” from the venture, 21 U.S.C. 848(c)(2)(B)—
could not be convicted of the CCE offense. The
20
overlap between the two statutes is much less than in
Ball.
b. The history of the receipt and possession
statutes also demonstrates that Congress intended
the two as alternatives. As the Court noted in Ball,
the receipt statute was “part of a carefully con-
structed package of gun control legislation, which had
been in existence for many years.” 470 U.S. at 862
(internal quotation marks omitted). By contrast, the
possession statute was a “last-minute Senate amend-
ment” to the statute that was “hastily passed, with
little discussion, no hearings, and no report.” Id. at
863. It was “enacted as supplementary legislation,”
and was intended to “fill[{] the gaps in and expand{] the
coverage of” the receipt statute. bid. Based on that
history, the Court in Ball was “persuaded that Con-
gress had no intention of creating duplicative punish-
ment for one limited class of persons falling within
the overlap between the two [statutes].” Jd. at 864.
No such inference can be drawn from the relation-
ship between the CCE offense and a Section 846 drug
conspiracy. There is no reason to believe that either
statute was intended to fill gaps in coverage created
by the other, nor is there any basis for inferring that
Congress intended one as an alternative to the other.
Rather, both statutes were intended independently to
define violations of the narcotics laws.
c. In addition, unlike in Ball, practical concerns
suggest that Congress would not have intended to
prohibit separate convictions and concurrent senten-
ces for a CCE and drug conspiracy based on the same
agreement. One of the reasons for entering dual
convictions and concurrent sentences in a case like
this is that it is possible that the defendant could,
21
either on direct review or years later on collateral
attack, obtain reversal of the CCE conviction. Given
the hybrid nature of the CCE offense, a reversal could
stem from trial error or insufficiency of proof that
relates only to the elements that clearly distinguish a
CCE from a simple conspiracy: the existence of the
“continuing series of violations”; the requirement
that the defendant act in concert with “five or more
persons”; the need to show that the defendant played a
supervisory role; or the requirement that the defen-
dant have obtained “substantial income or resources”
from his violations. Such a reversal would provide no
basis for upsetting the drug conspiracy conviction.
Congress would no doubt have realized that a separate
conviction and concurrent sentence for the drug
conspiracy offense would be the simplest and most
effective way to ensure that the defendant who ob-
tains reversal of his CCE conviction on such a ground
would still be appropriately punished for the drug
conspiracy that he committed. See United States v.
Bond, 847 F.2d 1233, 1239 (7th Cir. 1988).
Those practical concerns have no force in the Bal/
situation. Because the elements of the offenses of
illegal receipt and illegal possession of a gun are
virtually coextensive, a defendant could rarely if ever
obtain a reversal of his conviction on one of the two
offenses without also demonstrating that he is
entitled to a reversal on the other. Congress there-
fore might have intended, as Ball held it did, that
there be only one conviction for that same conduct,
without creating any realistic risk that a defendant
might someday evade just punishment for his con-
duct as a result of entering only a single count
of conviction. Unlike in this case, Congress’s intent
22
to preclude separate convictions and concurrent sen-
tences in that situation in Ball may reasonably be
inferred.
d. Finally, the threat of adverse consequences for
the defendant is much less here than in Ball. The
Court explained in Ball that there were two adverse
consequences of the separate conviction and con-
current sentence. First, “the presence of two con-
victions on the record may * * * result in an
increased sentence under a recidivist statute for
a future offense.” 470 U.S. at 865." Second, “the
second conviction may be used to impeach the de-
fendant’s credibility and certainly carries the soci-
etal stigma accompanying any criminal conviction.”
Ibid. Neither of those concerns generally exists in
the case of dual CCE/Section 846 drug conspiracy
convictions.
With respect to sentencing under recidivist pro-
visions, the federal Sentencing Guidelines—which
came into effect after this Court’s decision in Ball—
would not produce an enhanced sentence in a sub-
sequent sentencing merely because of the entry of
dual CCE/drug conspiracy convictions based on the
same agreement. The Guidelines use the number
and characteristics of prior sentences—not the raw
number of convictions—to calculate the defendant’s
criminal history category. See Guidelines § 4A1.1.
1! The Court in Ball also noted that the presence of two
convictions “may delay the defendant’s eligibility for parole.”
470 U.S. at 865. Since parole has now been abolished in the
federal system, see Sentencing Reform Act of 1984, Pub. L. No.
98-473, Tit. II, Ch. II, §§ 212, 218, 98 Stat. 1987, 2027, that
no longer is an adverse consequence of the entry of two
convictions.
23
But “[p]rior sentences imposed in related cases are to
be treated as one sentence for purposes of” the
calculation. Guidelines § 4A1.2(a)(2). A CCE and a
Section 846 drug conspiracy sentence based on the
same agreement and tried at the same time would
be considered “related” under the Guidelines. See
Guidelines § 4A1.2, Application Note 3. The Guide-
lines instruct sentencing courts to “(uJse the longest
sentence of imprisonment if concurrent sentences
were imposed.” Guidelines § 4A1.2(a)(2). Thus, under
the Guidelines regime, a defendant in petitioner’s
position would not suffer any adverse consequences in
a future sentencing proceeding from having received
dual convictions and concurrent sentences.”
With respect to the “societal stigma” or impeach-
ment value attached to the second conviction, it is
” Congress has required a mandatory life sentence for
certain drug distribution violations involving particularly large
quantities of controlled substances if the defendant commits the
offense “after two or more prior convictions for a felony drug
offense have become final.” 21 U.S.C. 841(b)(1)(A). See 21
U.S.C. 802(43) (to be codified in 1994 edition) (defining “felony
drug offense”). The courts of appeals would not count the
CCE and drug conspiracy convictions in a case like this as
separate convictions for purposes of that provision, especially if
the CCE and drug conspiracy offenses are viewed as greater
and lesser included offenses. See, e.g., United States v.
Liquori, 5 F.3d 435, 437 (9th Cir. 1998) (citing cases), cert.
denied, 114 S. Ct. 738 (1994).
It is also possible that a defendant convicted of CCE and a
could in some future case face a state sentencing court, where
the federal Guidelines would be of no relevance. But it is
unlikely that Congress fashioned its penalties for federal felony
ae a consequences un-
w.
24
important to recognize that the CCE offense is one of
the most serious criminal offenses in federal law. It
is therefore doubtful that a defendant, once convicted
of CCE, would suffer any incremental stigma as a
result of the fact that he was also convicted of a
Section 846 drug conspiracy based on the same
agreement. Indeed, in light of the fact that there
would be a jury verdict of guilty on the Section 846
charge that would be a matter of public record, the
defendant would be extraordinarily unlikely to suffer
any additional stigma from the additional conviction.
Even if there were some increment of societal stigma
or potential for impeachment that would attach to the
drug conspiracy conviction, however, there would be
no reason to believe that Congress, having created
the CCE offense with its extraordinary penalties,
would have been concerned that some CCE defendants
would suffer such a relatively minor adverse con-
sequence. Therefore, it would provide no basis for
inferring that Congress would have wanted to pre-
clude dual convictions in this situation.
ll. IF THE COURT CONCLUDES THAT THE ENTRY
OF SEPARATE CONVICTIONS AND CONCUR-
RENT SENTENCES CONTRAVENES CONGRES-
SIONAL INTENT, THE APPROPRIATE COURSE
WOULD BE TO REQUIRE ENTRY OF A SINGLE,
MERGED CONVICTION AND SENTENCE ON THE
TWO COUNTS
Those courts of appeals that do not permit the
entry of a separate conviction or concurrent sentence
for CCE and a Section 846 drug conspiracy based on
the same agreement have adopted three different
approaches to the treatment of the dual jury verdicts
of guilty in such a case. In our view, the approach
25
developed by the Second Circuit of combining or
merging the two counts into a single conviction best
accommodates the interests of the government in
ensuring that the defendant receive just punish-
ment for the crimes he has committed and the inter-
ests of the defendant in avoiding adverse collateral
consequences.
1. The Second Circuit has held that the ap-
propriate course when the jury finds the defendant
guilty of CCE and drug conspiracy based on the same
agreement is to “combine” the two convictions in a
single count, for which the punishment may not
exceed that applicable to the greater offense. See,
e.g., United States v. Aiello, 771 F.2d 621, 632-635 (2d
Cir. 1985). Under that approach, “the conviction{] for
the lesser offense[] would cease to exist unless the
conviction for the greater offense should be reversed,
in which event the defendant could be punished for the
lesser offense[].” Jd. at 632. At that time, “[aJny time
already served would be counted as credit against the
newly imposed sentence.” Jd. at 634. Presumably,
any fine already imposed would also be credited
against any newly imposed fine. As we understand it,
the judgment in such a case would indicate that a
single conviction is being entered for two offenses.
The reason for the Second Circuit’s approach is
that, if the defendant succeeds in having his convic-
tion for the greater offense overturned on appeal or on
collateral attack, the defendant should not have the
windfall of avoiding punishment altogether for the
second offense. See Aiello, 771 F.2d at 633-634. See
also United States v. Lindsay, 985 F.2d 666, 670-671
(2d Cir.), cert. denied, 114 S. Ct. 103 (1993); United
States v,; Benevento, 836 F.2d 60, 73 (2d Cir. 1987),
26
cert. denied, 486 U.S. 1043 (1988). Cf. Tinder v.
United States, 345 U.S. 565, 569-570 (1953) (remanding
ease for entry of conviction and sentence on lesser
included misdemeanor after felony conviction was
overturned). The defendant, however, suffers no
adverse consequences from the entry of the single,
merged conviction. In any future recidivist pro-
ceeding, there would be only one conviction on the
defendant’s record, covering both the CCE and
Section 846 drug conspiracy offenses. Nor would
defendant suffer any other adverse consequences;
there is no reason to believe that the “societal
stigma” to which such a defendant would be subject
would be any greater than that to which he would
have been subjected had he been convicted only of a
CCE violation. Cf. Ball, 470 U.S. at 865.
In our view, if dual convictions and concurrent
sentences are held improper, the Second Circuit’s
approach best accommodates the interests of the
government and is consistent with Congress’s proba-
ble intent. In addition, it ensures that the defendant
will receive the punishment that he deserves, while
protecting the defendant against any possible adverse
consequences.
2. Based on concerns similar to those underlying
the Second Circuit’s “combination” approach, the
Ninth Circuit has taken a somewhat different course.
Although the Ninth Circuit has not specifically ad-
dressed the issue in a case where a defendant was
convicted of CCE and a Section 846 drug conspiracy,
that court has adopted a general approach for cases in
which it is permissible to charge and try a defendant
for two offenses, but to enter only one conviction.
The Ninth Circuit has held that the appropriate
27
course of action in such a case is to “stay[] both the
sentence and entry of judgment of conviction on all
but one count.” United States v. Palafox, 764 F.2d
558, 564 (9th Cir. 1985) (en banc).” If the conviction
that is entered is ultimately reversed on appeal or on
collateral attack, the district court could then enter a
judgment of conviction and sentence on the remaining
count. That would ensure “that the defendant is
punished, but punished only once,” and “(i]t avoids
both the punitive collateral effects of multiple convic-
® The Ninth Circuit’s procedure mirrors that formerly
followed by some courts under the concurrent sentence doc-
trine. After affirming one of two convictions on which sent-
ence ran concurrently, those courts would vacate the judgment
with respect to the other, but note that the sentence and
conviction could be reimposed at a later date in the event that a
defect were discovered in the conviction that was affirmed.
See, e.g., United States v. De Bright, 730 F.2d 1255 (9th Cir.
1984) (en banc); United States v. Butera, 677 F.2d 1376, 1386
(11th Cir. 1982), cert. denied, 459 U.S. 1108 (1983); United
States v. Hooper, 432 F.2d 604, 606 n.8 (D.C. Cir. 1970). But
see, e.g., United States v. Vargas, 615 F.2d 952, 960 (2d Cir.
1980) (applying the concurrent sentence doctrine to leave
undisturbed the unreviewed district court judgment); United
States v. Lampley, 573 F.2d 783, 788 (3d Cir. 1978) (same);
United States v. Nelson, 733 F.2d 364, 371 n.17 (5th Cir.)
(same), cert. denied, 469 U.S. 937 (1984); United States v.
Peters, 617 F.2d 503, 506 (7th Cir. 1980); United States v.
Wilson, 671 F.2d 1138, 1139 n.2 (8th Cir.) (same), cert. denied,
456 U.S. 994 (1982). Under 18 U.S.C. 3013, a special assessment
must be imposed with respect to each offense on which the
defendant is convicted. Since each offense now carries with it
a cumulative special assessment, the concurrent sentence doc-
trine now has virtually no application in the federal system.
See Ray v. United States, 481 U.S. 736 (1987) (per curiam).
28
tions as well as the direct effects of multiple
sentences.” Ibid."
In our view, although the Ninth Circuit approach
represents a partial accommodation of the important
interests at stake in cases of this sort, the Second
Circuit’s approach is preferable. Initially, if the CCE
conviction were ever overturned, it is possible that
speedy trial or related concerns could be thought to
threaten the ability of the government to obtain a new
judgment on the Section 846 jury verdict that has
been held in abeyance. That could add needless com-
plexity to the process of ensuring that the defendant
receives the punishment Congress intended for his
participation in the Section 846 drug conspiracy.
In any event, the Ninth Circuit’s approach could
interfere with the strong policy against piecemeal
appeals in criminal cases. In an initial appeal in such
a case, the defendant could not raise—and the court
could not decide—any issue that concerns only the
Section 846 drug censpiracy conviction, for the only
issue before the appellate court would be whether the
4 The Ninth Circuit has employed the Palafox approach in
subsequent cases involving dual convictions where cumulative
punishments could not be imposed, although none of those cases
specifically involved convictions for drug conspiracy and CCE.
See, e.g., United States v. Compton, 5 F.3d 358, 360 (9th Cir.
1993); United States v. Sanchez-Lopez, 879 F.2d 541, 549-550
(9th Cir. 1989); United States v. Sanchez-Vargas, 878 F.2d
1163, 1172 (9th Cir. 1989); United States v. Andersson, 813
F.2d 1450, 1460-1462 (9th Cir. 1987). Compare United States
v. Hernandez-Escarsega, 886 F.2d 1560, 1582 (9th Cir. 1989)
(holding that conviction on drug conspiracy offense must be
vacated in light of CCE conviction, but not stating whether
drug conspiracy conviction could be revived if CCE conviction
were ever overturned), cert. denied, 497 U.S. 1003 (1990).
29
CCE conviction and sentence is valid. Indeed, there is
some possibility that a judgment that purports to stay
disposition of the drug conspiracy count would be
insufficiently final to support an appeal. See United
States v. Luciano-Mosquera, Nos. 92-1923 et al., 1995
WL 500601, at “3 n.2 (1st Cir. Aug. 28, 1995) (“[A]
criminal judgment involving multiple counts is not
final and appealable unless the record discloses the
precise disposition (e.g., the sentence) for each
count.”); United States v. Wilson, 440 F.2d 1103, 1104
(5th Cir.), cert. denied, 404 U.S. 882 (1971) & 405 U.S.
1016 (1972). Even if such a partial disposition of the
case could support an appeal, legal issues concerning
the validity of the Section 846 drug conspiracy
conviction could lie dormant for years, until and
unless it is necessary to enter judgment on that
conviction. Only at that time could the issues be
brought before the court of appeals.
Under the Second Circuit’s approach, such piece-
meal appeals would be avoided; the defendant could
(and should) challenge any defects regarding both the
CCE and the drug conspiracy charges on his initial
appeal of the merged conviction. Indeed, the validity
of both charges would be squarely before the court at
that time, since a reversal on the ground of a defect
in the CCE count would lead only to a remand for
resentencing, while a reversal on the ground of one or
more defects affecting both the CCE and drug con-
spiracy counts would lead to a remand for vacatur of
the conviction. See Aiello, 771 F.2d at 634 n.8.
3. Several courts have held simply that a defendant
may be convicted of only one offense (the CCE or
the drug conspiracy) and that a judgment imposing
two convictions must be set aside and remanded for
30
the district court to vacate one of the convictions—
presumably, the lesser one.” Those courts have not
made clear whether a conviction on the Section 846
drug conspiracy count could later be entered if the
CCE conviction were ever overturned on collateral
attack. If those courts would permit such a convic-
tion to be entered, their approach is essentially iden-
tical with that adopted by the Ninth Circuit. If they
would not permit such a conviction to be entered,
however, their approach is mistaken. It would permit
a defendant who engages in a drug conspiracy in
violation of Section 846 and who is properly tried and
found guilty by a jury for that violation to escape
without conviction or punishment, so long as he was
also convicted of a CCE offense at the same time and
that CCE conviction is later found to be defective.
That is not a plausible understanding of Congress’s
intent regarding punishment for defendants who
commit both Section 846 drug conspiracy and CCE
violations. Nor is it necessary to achieve any other
legitimate goal. Accordingly, it should be rejected.
See United States v. Cloutier, 966 F.2d 24, 30-31 (1st Cir.
1992); United States v. Butler, 885 F.2d 195, 201-202 (4th Cir.
1989); United States v. Chambers, 944 F.2d at 1268-1269;
United States v. Rivera, 900 F.2d 1462, 1478 (10th Cir. 1990)
(en banc); United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir.
1986), cert. denied, 481 U.S. 1006 & 482 U.S. 930 (1987). The
Eighth Circuit has adopted an approach whereby the district
court may enter two convictions, which the court of appeals
reviews on appeal. If both are upheld, however, the court of
appeals remands the case to the district court for vacatur of
one of the convictions. United States v. Jelinek, 57 F.3d 655
(8th Cir. 1995), petition for cert. pending, No. 95-5343.
31
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted.
Drew S. Days, III
Solicitor General
JOHN C. KEENEY
Acting Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
JAMES A. FELDMAN
Assistant to the Solicitor General
RICHARD A. FRIEDMAN
Attorney
OCTOBER 1995
APPENDIX
1. 21 U.S.C. 846 provides as follows:
§ 846. Attempt and conspiracy
Any person who attempts or conspires to
commit any offense defined in this subchapter
shall be subject to the same penalties as those
prescribed for the offense, the commission of
which was the object of the attempt or conspiracy.
2. 21 U.S.C. 848 provides in relevant part as
follows:
§ 848. Continuing criminal enterprise
(a) Penalties; forfeitures
Any person who engages in a continuing
criminal enterprise shall be sentenced to a term
of imprisonment which may not be less than 20
years and which may be up to life imprisonment,
to a fine not to exceed the greater of that auth-
orized in accordance with the provisions of title
18, or $2,000,000 if the defendant is an individual
or $5,000,000 if the defendant is other than an
individual, and to the forfeiture prescribed in
section 853 of this title; except that if any person
engages in such activity after one or more prior
convictions of him under this section have become
final, he shall be sentenced to a term of im-
prisonment which may not be less than 30 years
and which may be up to life imprisonment, to a fine
not to exceed the greater of twice the amount
(la)
2a
authorized in accordance with the provisions of
title 18 or $4,000,000 if the defendant is an
individual or $10,000,000 if the defendant is other
than an individual, and to the forfeiture prescribed
in section 853 of this title.
(b) Life imprisonment for engaging in continuing
criminal enterprise
Any person who engages in a continuing
criminal enterprise shall be imprisoned for life
and fined in accordance with subsection (a) of
this section, if—
(1) such person is the principal adminis-
trator, organizer, or leader of the enterprise
or is one of several such principal adminis-
trators, organizers, or leaders; and
(2A) the violation referred to in sub-
section (d)(1) of this section involved at least
300 times the quantity of a substance de-
scribed in subsection 841(b)(1)(B) of this title,
or
(B) the enterprise, or any other en-
terprise in which the defendant was the
principal or one of several principal adminis-
trators, organizers, or leaders, received $10
million dollars in gross receipts during any
twelve-month period of its existence for the
manufacture, importation, or distribution of a
substance described in section 841(b)(1)(B) of
this title.
3a
(c) “Continuing criminal enterprise” defined
For purposes of subsection (a) of this section, a
person is engaged in a continuing criminal enter-
prise if—
(1) he violates any provision of this sub-
chapter or subchapter II of this chapter the
punishment for which is a felony, and
(2) such violation is a part of a continuing
series of violations of this subchapter or sub-
chapter II of this chapter—
(A) which are undertaken by such
person in concert with five or more other
persons with respect to whom such person
occupies a position of organizer, a super-
visory position, or any other position of
management, and
(B) from which such person obtains
substantial income or resources.
(d) Suspension of sentence and probation pro-
hibited
In the case of any sentence imposed under this
section, imposition or execution of such sentence
shall not be suspended, probation shall not be
granted, and the Act of July 15, 1982 (D.C. Code,
secs. 24-203—24-207), shall not apply.
4a Sa
(e) Death penalty (2) As used in paragraph [(1)(B)], the term “law
enforcement officer” means a public servant
(1) In addition to the other penalties set forth authorized by law or by a Government agency or
in this section— Congress to conduct or engage in the prevention,
sae ee; investigation, prosecution or adjudicati
(A) any person engaging in or working In. offense, and includes those Pine so tlh
furtherance of a continuing criminal enter- tions, probation, or parole functions.
prise, or any person engaging in an offense
punishable under section 841(b)(1)(A) of this >see ee
title or section 960(b)(1) of this title who
intentionally kills or counsels, commands,
induces, procures, or causes the intentional
killing of an individual and such killing
results, shall be sentenced to any term of
imprisonment, which shall not be less than 20
years, and which may be up to life imprison-
ment, or may be sentenced to death; and
(B) any person, during the commission of,
in furtherance of, or while attempting to —:
avoid apprehension, prosecution or service
of a prison sentence for, a felony violation
of this subchapter or subchapter II of this
chapter who intentionally kills or counsels,
commands, induces, procures, or causes the
intentional killing of any Federal, State, or
local law enforcement officer engaged in, or on
account of, the performance of such officer’s
official duties and such killing results, shall
be sentenced to any term of imprisonment,
which shall not be less than 20 years, and
which may be up to life imprisonment, or may
be sentenced to death.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.