*1 сapa- fully and was finding he intended that America, of crack delivering the nine ounces
ble UNITED STATES September 1992 deal. negotiated Plaintiff-Appellee, in the was insufficient there Moore contends finding under support this factual evidence to 2D1.4.5
Application Note for section Coyette JOHNSON, Defendant- Deon sentencing hearing, the During the 1996 Appellant. negotiation that the last district court found agents re- Moore and undercover No. 96-6393. between “virtually a bilat- agreement, in a firm sulted Appeals, States Court of The court found that Moore eral contract.” Tenth Circuit. crack, the nine ounces of intended to deliver filling capable this order and that he Dec. than ten times the thоugh even it was more any previous purchase. amount of clearly findings are not erro-
These factual ample rec- There is evidence
neous. support the district court’s view that
ord to if Moore could not deliver the nine
even once, all at the offer to deliver the
ounces installments showed an
crack one ounce capacity fill the For
intent and order. government’s agent undercover
example, the negotiations with
testified that the course of capacity up
Moore indicated a to deliver week, Moore
three to four ounces ultimately not to
never indicated intent Consequently,
deliver all nine ounces. we
reject argument the district Moore’s im-
court’s inclusion of the nine ounces was
proper 2D1.4. under section
V. of our conclusion that the record law,
supports a conclusion that as a matter of unconvicted, post-con- uncharged,
Moore’s
spiracy drug deal should be considered as sentence, we AF-
relevant conduct
FIRM. amount, actually language capable producing negotiated
5. The district court relied on identical, although guideline the 1992 Manual that is locat- the court shall exclude from the cal- elsewhere, guideline. ed U.S.S.G., to the 1991 See culation the amount that it finds the defendant (n.l2) (Nov. 1992). provi- § 2D1.1 produce did not intend to and was reason- guidelines sion in both reads: ably capable producing. comment, U.S.S.G., (Nov. (n.l) 1991); § 2D1.4 that the defendant did [W]here the cоurt finds U.S.S.G., (n.l2) (Nov. 1992). reasonably produce not intend to and was not 2D1.1 *3 Keitha Diggs moved to Temple, Oklahoma. They initially lived with Diggs’ mother and her mother’s other three children. During stay their Diggs’ house, mother’s marijuana smoked daily on a basis. He also possessed a 9mm Intratec Tec-9 semi-auto- handgun, matic which he paper stored in a sack on the floor of the closet one of the children’s rooms. He about talked the hand- gun regular on a basis Diggs’ mother’s sons and young other men who came to the house. August 1995, late Johnson and *4 Diggs moved into a house approximately three Diggs’ blocks from mother’s house. They Diggs’ continued to visit mother’s basis, daily house on a Johnson continued to marijuana basis, smoke on rеgular and Johnson regularly seen possession was in handgun. Earley, William P. Assistant Federal Pub- On October the local task Defender, City, OK, lic appel- for Oklahoma arranged Watkins, force for Barbara an in- lant. formant, attempt to a controlled narcotics purchase from Johnson. Watkins met task Walling, David L. Assistant United States agents Mooney force at Temple Lake near (Patrick Attorney Ryan, M. car, and the agents placed searched her brief, Attorney, with him on the Oklahoma her, body microphone provided and her OK), City, appellee. for with purchase. Watkins, cash to make the Caucasian, who is picked up Sparks, Stella TACHA, BRISCOE, Before and McKAY African-American, who is bеcause she be- Judges. Circuit lieved it would increase the chances of mak- ing purchase Johnson, from narcotics who BRISCOE, Judge. Circuit is also an Sparks African-American. did not know going Watkins was to make a con- Coyette Defendant appeals Johnson his purchase. trolled Sparks Watkins and went being convictions of in a felon of a Diggs’ to mother’s house where Johnson firearm, being an unlawful user of controlled agreed to sell Watkins three rocks of cocaine substances in firearm, of a and for Sparks After Watkins and $40. left the substance, distribution of a controlled and his car, house and to Sparks returned took impris- concurrent of 237 sentences months’ one of the away. rоcks cocaine and walked jurisdiction onment. We pursuant exercise Watkins Mooney returned to Lake and part, to U.S.C. affirm in re- turned remaining over the rocks cocaine to part, verse and remand with instructions agents. A chemist at the Oklahoma to vacate Johnson’s being conviction for State Investigation Bureau of confirmed the unlawful user of pos- controlled substances in cocaine, substance but he was did not deter- session firearm. mine whether it was hydrochloride cocaine cocaine base. I. evening, Later that same Johnson was so- Johnson felony was convicted of a cializing people Wich- several Diggs’ with other Texas, County, ita 1994. In July late or mоther’s house when Sandra Mims arrived early August girlfriend he and his La- argued informed them she had on both if was convicted knife on her. ed that pulled a and he
Johnny Green counts, him on one it would sentence left the house nine or ten them group A by jury convicted on all count. Johnson was Some to Green. rode car find in Mims’ to 237 counts and was sentenced three on the hood of and others rode car inside the imprisonment. The court sentenced months’ Ruby’s to Cafe but They first went the car. counts, 922(g) but the him on one of the pro- group then not there. Green place. remain in on both counts foot, convictions ceeded, car and some on some Jimmy They flagged down house. Green’s El- Franklin, daughter Shatаuna Mims’ II. car, swinging began her got out of the
icks him, if Franklin he knew and asked arms at pretrial motions to dismiss Denial of mother. Johnson also “jumped” her who had court erred the district Johnson contends car, front walked to the got out of pretrial his motions dismiss. car, handgun at Frank- his Franklin’s aimed sought of Counts dismissal “I lin, something to the effect of am and said of Count multiplicitous, as and dismissal going I to kill am going get this brother. charging statute was void because the Franklin heard R. Ill at 162. nigger.” this acknowledges he vagueness. Although he window passenger had gunshots, realized punished argues he was not for Count shot, in the seat and down been and ducked *5 it error because al- alleged prejudicial was looked pedal. When he hit the accelerator evidence government to introduce lowed car, of his up, on the hood he saw Johnson prior felony concerning at trial conviction the hood with his left hand and holding onto drug usage. his and right in hand. Johnson holding gun his but, briefly stop stop- after Franklin to told Multiplicity car, hit the again accelera- ping his Franklin multiple Multiplicity counts refers fashion pedal in an erratic until tor and drove an indictment which cover the same crimi of ear. off the hood of the Frank- Johnson fell Morehead, v. nal behavior. United States handgun lodged was Johnson’s lin noticed (10th Cir.1992). 1489, 1505 “While car and the the hood of the wind- between indictment, multiplicity not to an ... fatal his hand out the shield so he window reached multiple poses it the threat of sentences for grabbed gun. He then drove down- may improperly sug the same offense and police he located a officer and town where has gest to the that the defendant com happened. what had Officers deter- told her (citation more than crime.” Id. mitted one They examined gun mined the was loaded. omitted). multiple of sentences The threat deep scratches on Franklin’s car and found jeopardy for the same offense raises double Although a bullet was retrieved the hood. implications. Id. We review claims of multi car, subsequent from the of the driver’s seat McIntosh, plicity de novo. United States not been testing determinеd the bullet had Cir.1997). 1330, 1336 by gun. fired Johnson’s grand charged A returned a three-count in- 2 Counts 1 both Johnson, him against charging in knowingly possessing dictment with the Tec-9 hand 1, 1995, possession July up being gun 1 a felon in of on or “[f]rom Count with about (18 § in 1995.” 922(g)(1)), including firearm U.S.C. Count on or about October I, 1. The distinction between being with an unlawful user of controlled R. doc. (18 alleged counts is that Count Johnson had possession in of a firearm substances felony of and had § in 3 with been convicted violated 922(g)(3)), and Count dis- U.S.C. (21 § 922(g)(1), whereas Count al of a substance 18 U.S.C. tribution controlled U.S.C. 841(a)(1)). user of Although leged § court he was an unlawful controlled the district did violated 18 U.S.C. government to elect between substances and had require not trial, pretrial 922(g)(3). § In prior it Count and Count 2 conclud- States, 299, 304, counts, the United 284 U.S. S.Ct. one of the to dismiss motion (1932), 180, 182, 76 the counts each “it was not inten- L.Ed. concluded district court punish- required unique one element of provide for the least Congress to tion proof. more two or a defendant ment of Id., 922(g).” § doe. separate subdivisions Winchester, In United States However, court concluded the 35 at 5. (11th Cir.1990), defendant was convicted required to elect be- government § 922(g)(1) for violations of and sentenced possible counts because it was tween two firearm) (felon possession (g)(2) guilty of count found one “could be justice (fugitive from fire- being guilty the oth- necessarily
without arm), (i.e., arising out of the same conduct if Johnson was Id. The court concluded er.” firearm). single On aрpeal, counts, judgment would guilty found of both argued multiplici- the counts were count to dual on one avoid be entered tous and he should not be sentenced both. (citing Ball v. United punishment. agreed, concluding The Eleventh Circuit States, 105 S.Ct. 470 U.S. “that, 922(g), it enacting section was not (1985)). Johnson was L.Ed.2d 740 Congress’ comprehension or within intention sen- 922(g) counts and on both convicted sentenced, person single that a be for a could (Count 1), record count but the tenced on one incident, under more than one of the subdivi- convictions remain appeal both indicates 922(g).” Id. at 606. Al- sions of section place. though acknowledged the court that each required proof of a fact the did multiplicity offensе other circuits have addressed Three who, not, distinguished Blockburger on two like arguments raised defendants First, Johnson, court simultaneously charged grounds. noted defen- were Blockburger was convicted and sen- multiple firearm violations under different dant statutory 922(g). tenced under two different sections subsections *6 (8th Peterson, Cir.1989), in was con- 1110 one while the defendant Winchester 867 F.2d two different subsections of the convicted of three counts of victed under was codefendant Second, the court ammuni- same statute.2 concluded possession unlawful of firearms and felon, Blockburger only provided guidance in in deter- by tion a convicted violation pos- congressional intent and was there- mining of unlаwful 922(g)(1), § and one count statutory by inapplicable because “[t]he a user fore firearms and ammunition session of substances, history of the Gun language legislative and violation of controlled 922(g) [§ ] reveal[ed] ar- Act of 1968 922(g)(3).1 rejecting multiplicity § In the Control prohibit pos- the multiple Congress’ intent was to held gument, Eighth the Circuit by it classes of individuals charged dif- session of firearms counts under firearm violation punish than to dangerous, rather 922(g) arising out deemed but ferent subsections having a certain persons solely for status pattern of conduct were not of the same addition, the because, Blockburger v. under the court multiplicitous under law.” Similarly, separate in Ball v. United Unfortunately, opinion provides littlе detail statutes.” the 1. 1668, 1671, States, S.Ct. particular, 470 105 concerning of the case. In it U.S. the facts (1985), emphasized (g)(3) charge was based 740 the Court whether the 84 L.Ed.2d is unclear underlying assumption firearm at the the Blockbur- of the same and that "[t]he charges. ordinarily (g)(1) Congress not ger same as one of the time rule is that does punish under two to the same offense intend v. See also United States different statutes.” point Although of this is conclu- 2. the discussion 723, 1995) (5th Kimbrough, 729 n. 5 Cir. F.3d 69 supported by Supreme soiy, appears it to be “applies (Blockburger to determinations test example, precedent other circuits. Court For to Congress intended the same conduct 54, whether States, 437 U.S. 70 n. in 24, v. United Sanabria provisions,” punishable criminal undеr two be 43 2181 n. 57 L.Ed.2d 98 S.Ct. multiple inapplicable are where counts (1978), and is Blockburger the "same Court noted the provisions”), charged criminal under "the same "used to determine whether test is evidence” single ecutions, convictions, — -, 1547, 134 116 S.Ct. separate pros- denied U.S. may give cert. transaction rise to (1996). punishments L.Ed.2d 650 and/or 1426 any interpretation require government the to elect between other
concluded
lead to
anomalous and
922(g)
prior
[the]
“would
two firearm counts
to trial. A
the
allowing
result” of
a defendant
draconian
require
prosecu
of whether to
decision
having
than one of the statuses listed
more
multiplicitous
tion to elect between
counts
in the various subdivisions
be sentenced
trial is within the discretion of the
before
consecutively
Id. at
for the same incident.
trial court. See United States v. Throne
Cir.1990);
burg, 921 F.2d
Unit
Phillips,
F.Supp.
v.
ed States
Munoz-Romo,
In United States v.
(D.D.C.1997). The risk of a trial court not
(5th Cir.1993),
Fifth
F.2d 757
Circuit
pretrial
“may
requiring
election is that
agreed
acknowledged and
with Winchester.
falsely suggest to a
that a defendant has
Although
originally ap-
Fifth
Circuit had
not one
several crimes.”
committed
but
plied Blockburger
upheld multiple sen-
Duncan,
v.
§ 922(g),
tences under various subsections of
(6th Cir.1988);
1108 n.
see also United
Munoz-Romo,
see United States
Marquardt,
States
(5th Cir.1991),
petition
defendant tiled a
Cir.1986) (multiple indictments create the im
and,
response,
for writ of certiorari
activity
pression of more criminal
than
fact
Solicitor General of
the United States
occurred).
message
“Once such a
is con
error,
changed positions, confessed
veyed
jury,
the risk increases
urged that the case be remanded for dismiss-
analysis
will be
from a careful
diverted
Supreme
al of one of the counts. The
Court
issue,”
of the conduct at
and will reach a
certiorari,
granted
judgment,
vacated
compromise verdict or assume the defendant
for further
remanded
consideration
guilty
charges.
on at least some of the
position
by
of the
asserted
Solicitor
remand,
Clarridge,
F.Supp.
the Fifth
con-
General. On
Circuit
(D.D.C.1992).
“Congress,
rooting
cluded that
all the
possession]
single leg-
offenses in a
[firearm
including
islative еnactment and
all the of-
We conclude the district court did
statute,
fenses in
subsections
the same
not abuse
its discretion
signaled
multiple pun-
that it did not intend
pretrial
§ 922(g)
motion to dismiss one of the
single weap-
ishments for the
noted,
possibility
counts. As the court
on.”
mining legislative
controlling
intent
other. Even if the court’s denial of the
*7
“Congress
only
because
intended to describe
motion could be considered an abuse of dis
single
by
a
crime that could be committed
cretion,
clearly
it is
in
harmless
this case.
types
seven
of
offenders.”
Lane,
438, 449,
Sеe
States v.
U.S.
(1986)
106 S.Ct.
court with instructions to vacate Johnson’s
conviction on Count 2.
Vagueness
only remaining question
charged
Count of the indictment
is
refusing
violating
922(g)(3),
whether the district court erred in
which
it
makes
though
no evidence that Johnson
...
is an un-
there was
any person
who
for
“unlawful
actually
handgun
used or carried the
any
to
controlled
user of or addicted
lawful
night
(as
sold cocaine to
on the
of
in section 102 of
he
Watkins
defined
substance
802))
(21
18, 1995, there was evidence he had
U.S.C.
October
Act
Controlled Substances
previous
drugs
Temple.
of
It
any firearm.” Ac- made
sales
possess ...
...
to ...
Johnson,
for
to infer the
is unconstitu-
reasonable
the statute
was
cording to
handgun
or
him in those trans
it fаils to define the
aided
assisted
tionally vague because
Hubbard,
any
United States v.
of ...
controlled
actions. See
“unlawful user
term
Cir.1995) (“natural
1261, 1270
a nexus in F.3d
infer
require
not
substance” and does
may
contemporaneous
be drawn from
place
the use and
ences”
or
between
time
guns
drugs
because “the
reversing Johnson’s
firearm. As we are
drug activity,
remanding with
is an indication of
2 and
firearm
on Count
conviction
conviction,
participation
drug trafficking supplies
it is
to vacate that
instructions
—
vagueness
having
gun”),
cert. denied
unnecessary
to
this
motive
for us
address
-,
116 S.Ct.
ing. It was uneontroverted house on October Diggs’ to joinder offenses mother’s conclude of the went We and left where she met Johnson the with proper 8 because under Rule here Although John of cocaine. part of three rocks arguably related to and with handgun was question the identi- attempted to call into trafficking Al- scheme. son Watkins, must find he distributed “a controlled sub- ty person of the who sold cocaine to stance,” unequivocally “knew that he a con- testified at trial and distributed Watkins substance,” person who trolled and “intended to distrib- identified Johnson as the had I, R. Accordingly, to her. there is ute the controlled substance.” doc. sold the cocaine joinder jury that the firearms instr. 25. The was further instructed no indicatiоn necessary govern- concern- that it was “not for the offenses or introduction evidence jury’s prove pre- ment to that knew the ing [Johnson] those offenses influenced the ver- cise nature of the controlled substance that dict Count Id., Finally,
was distributed.” instr. 26. jury was cocaine was a instructed “controlled Jury regarding instructions distribution Id., under federal law.” instr. substance[] count clearly 27. These instructions are consistent contends the court Johnson district required jury to Deisch and deter- refusing give proposed to in erred distributing mine knew he was a Johnson govern to effect that it was the struction substance controlled and intended distrib- responsibility prove beyond a ment’s rea a ute controlled substancе. No more was sonable doubt the substance sold to and, important- required under Deisch more alleged was in fact cocaine base as Watkins ly, required prove no more is a violation of alleged 841(a)(1). the indictment. Count 3 The district court did not err in “approximately distributed .18 rejecting Johnson’s instruction. tendered grams containing of a mixture or substance a Sufficiency evidence base, detectable amount of cocaine a Sched I, ule II controlled substance.” R. doc. 1 at contends evidence added). (emphasis reject The district court support trial was insufficient to his convic proposed in ed Johnson’s instruction and Sufficiency ques tions. of the evidence is a jury beyond that it structed the must find a subject tion of law to de novo review. Unit reasonable doubt that Johnson a distributed Wilson, ed States F.3d “controlled substance.” Cir.1997). support Evidence is sufficient to conviction if the evidence in and reasonable Deisch, We find United States v. 20 F.3d therefrom, ferences drawn viewed (5th Cir.1994), Deisch, persuasive. In government, favorable to most rejected the Fifth Circuit addressed and would allow a reasonable to find defen argument urged by similar to that now John- guilty beyond dant a reasonable doubt. Id. identity son. The court concluded “that the evidence, examining “we evaluate the being the involved controlled substance as sufficiency by ‘considering] of the evidence simрly ‘cocaine base’ rather than ‘cocaine’is the collective inferences to be drawn from 841(a)(1) any not an element of section of- (quoting evidence as whole.’” Instead, fense.” Id. at 151. the court held: Hooks, 841(a)(1) involving “For a section offense co- (10th Cir.1986)). willWe not overturn a caine allege, base the indictment need jury’s finding juror unless no reasonable find, and the need that the sub- disputed could have reached the verdict. cocaine, stance was and whether or not it was Chavea-Palacios, United States v. purely the ‘cocaine base’ form of cocaine is (10th Cir.1994). 1290, 1293 Id.; sentencing factor.” see also United Levy, States support To a felon in Cir.1990) (“Under 841(b)(1)(B), sectiоn 922(g)(1), firearm conviction under the evi quantity district court determines the *9 dence must demonstrate defendant was a type purpose of controlled substance for the felon, knowingly pos convicted sentencing.”). firearm, sessed a the firearm traveled Here, the was instructed that to or find affected interstate commerce. See United guilty 350, Cir.), charge, Capps, Johnson on the distribution it 77 States F.3d 352 — 2568, -, Sparks. argued outrageous it was He 116 S.Ct. U.S. denied cert. (1996). stipulated government conduct for the condone this L.Ed.2d illegal over conduct. The evidence felon. he was a convicted possessed a he whelmingly demonstrated considering time he moved to a claim of outra handgun from the
Tеc-9 conduct, scope July geous governmental 1995 until October our in late Temple Sneed, by officers. It recovered review is de novo. United States v. it was (10th Cir.1994). handgun had that the uncontroverted de and had thus outrageous governmental Florida is been manufactured fense of conduct to reach in interstate commerce traveled based on the Due Process Clause of the Fifth favor light in the most Viewed Oklahoma. Id. the defense of en Amendment. Unlike is suffi government, this evidence able to the trapment, predisposition which considers conviction on support crime, cient commit the the defense defendant to I. Count outrageous governmental conduct looks governmеntal Id. at conduct. 1576- plain language of to the
“Pursuant
date,
recognizing the outra
77. To
courts
841(a)(1),
prima
the essential elements
attempted
geous conduct defense “have
of a controlled sub
case of distribution
facie
precise
require
to attach a
definition to its
(2)
(1)
intentional;
knowing or
are:
stance
Lacey,
ments.” United States v.
—
(3)
distribution;
substance.”
of a controlled
(10th Cir.),
-,
cert. denied
U.S.
Santistevan,
(1996).
136 L.Ed.2d
S.Ct.
Cir.1994).
“Distribution” has been
“Rather,
whether,
inquiry
the relevant
is
“delivery,” which
by Congress as a
defined
considering
totality of the circumstances
the
actual, constructive, or at
encompasses “the
case,
any given
government’s
the
conduct
of a controlled substance.”
tempted transfer
shocking, outrageous
so
and intolerable
Sparks
that she and
testified
Id. Watkins
jus
that
‘the universal sense of
offends
negotiat
mother’s house and
Diggs’
went to
emphasized
previously
have
tice.’”
We
from
purchase of
worth of cocaine
ed the
$40
extraordinary
“is an
re
[one]
the defense
officers corrobo
Law enforcement
Johnson.
egregious
most
circum
served for
testimony and verified
rated Watkins’
stances,”
to be invoked each time
and “is not
were
purchased from Johnson
the substances
deceptively
partici
government acts
or
attempt
Although defense counsel
cocaine.
investigating.”
pates in a crime that
it is
identity
concerning
to raise doubts
ed
Mosley, 965 F.2d
States v.
Watkins, giv
person who sold the cocaine to
(10th Cir.1992).
of Johnson
in-court identification
en Watkins’
points
support
to in
The facts Johnson
with,
had
person
as the
she dealt
essentially uncontroverted.
his contention are
evidentiary
concluding
Johnson was
basis
purchase
making
controlled
from
After
person
sold the cocaine to Watkins.
who
Johnson,
three rocks
gave one of the
Watkins
most favorable to
Viewed
meeting, with
Sparks
of cocaine to
before
is sufficient to
government,
this evidence
However, this fact
agents.
task force
support Johnson’s conviction Count
light of other evidence
must be considered in
testified she had
presеnted at trial. Watkins
Outrageous governmental conduct
make a controlled
previously attempted to
unsuccessful
purchase from Johnson but was
contends the district court
she was a “snitch.” She
judgment of because he believed
his motion for
erred
accompany
Sparks to
her with
govern
to ask
outrageous
3 for
decided
acquittal on Count
presence would con-
hope
Sparks’
Specifically,
complained
he
mental conduct.
Sparks was
to make a sale.
pur
vince Johnson
made the controlled
that after Watkins
was an informant
cocaine,
unaware that Watkins
knowingly allowed
chase of
officers
taking place.
purchase was
that a controlled
one of the rocks of cocaine
her to distribute
*10
Lake,
statute,
Mooney
concerning
interpretation of a
we
Wat-
the
she returned
When
novo.”).
agents
given
that she had
review the
court’s decision de
informed the
district
kins
Although
prov-
the
Sparks
government
a rock of cocaine.
The
carries the burden
preferred
they
ing by preponderance
would have
of the evidence that
agents testified
cocaine, they
giving Sparks
appropriate.
not
a rock
Id. The Act
her
an enhancement is
“only way out” of
prison
concluded it was Watkins’
for a
authorizes an enhanced
term
Considering all of these facts
being
the situation.
defendant whо is convicted of
a felon
reject
outrageous
together,
firearm,
we
pre-
who has “three
Although
defense.
Watkins violated
conduct
by any court
...
for a
vious convictions
law,
government’s acknowledgment
the
offense,
the
felony
drug
violent
or a serious
shocking, outra-
of this conduct was not “so
both, committed on occasions different from
geous and intolerable” as to
the
924(e)(1)
“offend[]
(empha-
§
one another.” 18 U.S.C.
justice.” Lacey,
universal sense of
added);
Romero,
see
episode multiple drug rule to offenses differ- ently Specifically, from violent felonies.” We review de novo a sentence argued “that convictions that re- imposed enhancement Armed Ca continuous, Romero, ongoing sult from a business reer Criminal Act. Cir.1997); selling drugs comprise single should crimi- F.3d see also 924(e).” Murphy, episode purposes nal of section (“Since Cir.1997) rejected determining argument The Ninth Circuit this felonies, single whether the conduct was a occasion or and held “that no than violent less distinct, multiple presents legal question occasions offenses committed at different *11 Although the three an undercover officer. predicate offenses for separate are times nature, 924(e),” 307, they were “even offenses were similar id. at section purposes of other, separate clearly distinct in time and criminal simi hours of each within if committed 924(e)(1). § episodes purposes for nature, for trial and consolidated lar in conclud at 306. The court sentencing.” Id. cigarettes of PCP-laeed
ed two sales III. county state and within in the same occurred separate days of each other were twenty-four We AFFIRM Johnson’s convictions on 924(e)(1). § Id. at purposes of offenses for 3, Counts and but REVERSE Johnson’s Kelley, also United States 305-06. See REMAND the conviction on Count and (5th Cir.1993) (two 1464, 1473-74 981 F.2d court with instructions to case to the district apart in two weeks dif of cocaine deliveries that conviction. Because the dis- VACATE separate offenses for counties were ferent impos- 2 in trict court did not consider Count 924(e)(1)); § purposes of sentence, ing we AFFIRM his sen- Cir.1992) (4th 1312, Samuels, 970 F.2d tence. (two day apart sepa one were drug offenses 924(e)(1)); purposes § for rate offenses TACHA, J., dissenting. Roach, 679, 683-84 States v. Cir.1992)
(6th (three 11, drug sales on March portion respectfully I dissent from that 12, 26, 1981, separate were offenses for and majority opinion that finds the convic- 924(e)(1)); § purposes of multiplieitous. I II I do tions on Counts and McDile, 1061-62 Cir. language not find in the and structure of 18 1990) (sales September No drugs on 922(g) Congressional § a clear intent U.S.C. 23, 1983, separate were and vember punishment impose not to cumulative 924(e)(1)). § purposes for offenses weapon more than of a violated (g). of subsection one of the subdivisions already adopted applied Having clearly expressed statutory in the Congress episode” rule other con- “single criminal to bar language the intent texts, appropriate to follow the we find it persons by the classes of that Con- firearm Fifth, Sixth, Fourth, Eighth, Cir- and Ninth dangerous. Nothing gress determined were (all adopted “single of whom have cuits statutory language suggests that be- rule) apply the rule episode” criminal may proved defendant be cause individual prior involving the one at bar eases such as Congress in- categories, fall into several drug of- drug offenses. The result is pun- should be tended that “distinct, different fenses committed sub- only one of the enumerated ished under predicate separate as times” will be treated and, me, contrary true for The divisions. 924(e)(1). purposes of offenses for Blockburger ap- that the test should dictates ply. Clearly, each offense enumerated “single episode” criminal rule Applying the 922(g) requires here, of section underlying the subdivisions we conclude the three do the other subdivisions separate proof for of a fact that constitute offenses convictions 924(e)(1). majority the other circuits not. The presentence purposes of rely largely on a that, majority follows which the report on March indicated rationale and on statutory organization approached an undercover officer Falls, Texas, of the Solicitor General United quantity him a about-face and sold Wichita Munoz-Romo, F.2d 757 days Three later he States v. of crack cocaine for $20. Cir.1993). over- of these reasons Neither approached an undercover officer again statutory comes, me, clearly-stated for quantity him a of crack cocaine $20 sold separate enhance- (the delineating provisions report not indicate whether was does officer). proof of the requiring different Finally, August ments and the same Blockburger third, of each to which offense elements he committed a similar I follow the applied. would test should be delivering of crack cocaine worth $20 Peterson, in United States v. Eighth Circuit (8th Cir.1989) for the *12 by Judge Barksdale in ably
reasons stated See 989 F.2d Munoz-Romo. dissent (Barksdale, J., dissenting).
at 760 America,
UNITED STATES
Plaintiff-Appellee, Jr., CARTER, Defendant-
Israel
Appellant.
No. 97-2122. Appeals,
United States Court of
Tenth Circuit.
Dec.