*3 GINSBURG, Before HENDERSON ROGERS, Judges. Circuit Opinion by for the court filed Circuit Judge HENDERSON. Concurring opinion filed Circuit Judge ROGERS. and un- HENDERSON, twenty backpack feet from the ly LECRAFT
KAREN mattress, 9-millime- a loaded dock der Judge: Circuit FBI also retrieved handgun. agents ter (Kelly) ap- Kelly, Jr. Kenneth Edward $46,500 from inside the approximately unlaw- count of on one peals his apartment. to distribute with intent fully possessing jury grand a federal On June 841(a), 21 U.S.C. in violation Kelly on one count unlawful- indicted carrying (b)(1)(C) using, and one count to distribute ly with intent possessing during a firearm possessing (PWID) cocaine, in of 21 U.S.C. violation of 18 U.S.C. in violation trafficking crime 841(a), (b)(1)(c);1 one count of un- *4 924(c). guilty plea his Kelly claims that of a firearm and ammu- § lawful of a crime by person or a convicted knowing, intelligent nition voluntary, was not imprisonment for a term punishable record; his by the supported adequately year, in violation of 18 exceeding one in par- violation the section plea to § one count of 922(g)(1); and U.S.C. Jeopardy the Double ticular violated possessing and a firearm using, carrying Constitution; States of the United Clause offense, in trafficking viola- during drug a assistance ineffective and received he 924(c).2 at Indictment of 18 U.S.C. tion 924(c) plea. the section regarding counsel 1-2, Kelly, v. Cr. No. 06-153 United States below, we affirm forth reasons set For the (D.C.Indictment). 2006) (D.D.C. 1, June court. the district judgment of the plea hearings on The district court held 2, 31, November 2006. 2006 and October I. hearing, Kelly en- November At the 2nd in he plea agreement a into tered 2004, to court order pursuant In June third the first and plead guilty to to agreed recording intercepting began FBI the the for the dismissal of exchange in counts telephone conversations. government’s the with- count and second and, August on wiretap concluded felony drug prior of a of a notice drawal for, applied the FBI September on 1-2, Agreement Plea Unit- conviction. obtained, to search warrants (D.D.C. No. 06-153 Kelly, Cr. ed lo- apartment girlfriend’s 2006). his vehicle and agreed to also Nov. Ave., S.E., facts, accepting Wash- them as 1526 Potomac cated at above-mentioned 2; also Id. at see ].” ] accurate[ were executed “fair[ The warrants ington, D.C. of Offense at Statement Upon 6:37 a.m. 2004 at September (D.D.C. Nov. No. 06-153 Kelly, Cr. FBI discov- searching apartment, 2006). contain- backpack living room ered in plea grams 497.1 October 31st bags During that held the earlier plastic two fully had that he Kelly verified and, hearing, approximate- hydrochloride of cocaine "any per- provides 841(a) 18 U.S.C. it "unlawful makes U.S.C. who, any knowingly intentionally ... ... during or and in relation any person son distribute, manufacture, pos- dispense, or or trafficking ... uses or carries drug crime manufacture, distribute, or with intent to sess who, firearm, any such in furtherance 21 U.S.C. dispense, substance.” a controlled shall, firearm, crime, in addition possesses a 841(b)(1)(C) provides the case “[i]n provided ... punishment for such to the substance], ... I or II controlled [schedule addi- trafficking sentenced to an crime” be 841(a)] [violating § be sen- shall person [a] imprisonment. term of and consecutive tional imprisonment of not more to a term of tenced years.” than agreement read and discussed because his car had been broken into earli- Transcript counsel. of Guilty with defense er. Id. at 93. He also stated that Kelly, Plea at States v. Cr. No. kept in apartment in order (D.D.C. 2006) (Tr.). himself, 06-153 Oct. to protect girlfriend “and government’s explaining the burden of whatever inwas there.” Id. at 63. that, proof, specified court district as At the November 2nd hearing, Kelly one, government to count would have clarified that he had first become aware of prove beyond a reasonable doubt drugs backpack parked when he eocaine[,] Kelly “possessed ... that [he] his driveway car girlfriend’s of his it, did so with the intent to distribute residence. Id. at explained 87-88. He knew that the [he] substance that he knew who the drugs belonged to substance, possessed was controlled [he] and believed that the owner was fact namely cocaine.” Id. 33. As to count going to sell drugs. Id. at 88-89. three, explained the district that the When asked whether he took the government prove would have to that Kel- them, into apartment protect ly pos- “committed the crime of unlawful responded give that he “didn’t it that much *5 session with intent distribute cocaine” thought ... probably like it’s [but] fe[lt] “knowingly and that he used or carried a better chance that bag would be safe during firearm and relation to the com- in the [sic] house than in the truck.” Id. knowingly mission of that crime or [he] at 92-93. He also agreed that “if some possessed a firearm in furtherance” there- body apartment] broke [into and [he] Kelly agreed of. Id. at 33-34. with the saw them trying to take some of [his] government’s proffer except factual that property, [he] wouldn’t hesitate to think he FBI that telling denied was “[t]here about using gun to keep them from a loaded in the bedroom.” Id. at 37- stealing property.” [his] Id. at The 96. Kelly explained 38. to the district court that, district court then observed although backpack that the cocaine in the was not “this is one proffers of the most razor-thin belonged his but instead to someone else taken[, [it had] ever given it] thinkfs] swapped Kelly who had vehicles with facts that have may come out ... we day before and left the cocaine a back- go able to forward.” Id. at 98. As the pack Kelly’s vehicle. Id. at 61-62. continued, hearing Kelly alerted judge Kelly thought money there was in the to the fact that he charged had been but, backpack receiving telephone after another section violation in Mary call person stating from the that he needed land and that he believed it was the same vehicle, to get package from the Kelly section violation as the one to which “thought it was and it was.” Id. at he was then pleading guilty. Id. 104-0 explained 61-62. further that he 5.3 The district court nonetheless rea backpack apartment transferred the to the soned that because “the facts that oc- 843(b); (3) had been earlier in using U.S.C. and possessing and on three counts of a 21-count indictment. conspiracy a firearm in furtherance of to dis- (1) counts included: to dis- possess tribute and with intent to distribute possess tribute and with intent to distribute cocaine and September cocaine base on cocaine and cocaine base between November Maryland, in the District of in violation 2000 and December District of 924(c). Superseding of 18 U.S.C. Fourth Maryland, the District of Columbia and else- Indictment at United States v. where, 841; (2) in violation of 21 U.S.C. Briscoe, (D.Md. No. AW-04-0559 Jan. using facility a communication in furtherance 2006) (Md.Indictment). of a conspiracy, narcotics in violation of 21 (D.C.Cir.2002); see also 2, 2004, are the 283 F.3d September on curred Olano, 725, 732, been well have charge could of this subject (1993) 1770, 123 L.Ed.2d crimes”—so multiple (under standard, appellant plain count was error for each section crime (1) an “er- a double there was may not be must establish different —“there (3) ror,” it “plain,” “affect[ed] Id. at it problem.”4 “seriously it (“Right, rights” and at 118 substantial agreed. Id. counsel fairness, integrity public gun, it’s a differ- affectfed] it’s though even (inter- offense.”). Kelly judicial proceedings”) then reputation drug trafficking ent omitted). ready to quotation he was nal citations and marks court that advised coun- three ineffective assistance of one and To establish to counts plead guilty ... “voluntarily sel, show did so “a criminal defendant must indictment lawyer Id. at 126-27. made ‘so serious will.” that his errors his own free and of functioning as the that counsel was accepted The district subsequently guaranteed sen- ... the Sixth “counsel” plea, id. Amendment,’ is a ‘rea- imprisonment on there him to 50 months’ tenced that, on but for counsel’s imprisonment probability sonable and 60 months’ count one errors, three, consecutively, the result of unprofessional followed to run count ” on have different.’ proceeding release would been supervised by 36 months three, Rashad, count one and 48 months count omitted). (D.C.Cir.2003) (internal citations Kelly filed his notice concurrently. run 7, 2007. on March appeal starting note that point, As a we upon a judgment of conviction “when the
II.
*6
final and the of
guilty plea has become
Jeopardy
A. Double
the
reopen
proceeding,
to
the
fender seeks
ordinarily
to whether
inquiry is
confined
plea
that his
Kelly argues
both counseled
underlying plea was
924(c)
va
should be
count
on the section
in the
voluntary.
If the
and
answer
been
previously
had
because he
cated
affirmative
then the conviction
of,
with,
acquitted
section
...
attack
...
foreclose the collateral
plea
924(c)
Maryland involving
in
violation
court
the record the
the face of
[unless]
and, therefore,
the district
handgun
conviction or
to enter the
power
had no
recognizing
in not
plainly erred
sentence.” United States
impose the
Clause barred
Jeopardy
Double
563, 569,
Broce,
488 U.S.
S.Ct.
924(c)
Kelly also
charge.
section
second
It is
clear
L.Ed.2d 927
his
contends that
section
district court
record that the
face of
(or
at least remanded
be vacated
should
accept Kelly’s guilty
authorized to
hearing) because
evidentiary
an
charge.
to the section
raising
in not
trial counsel was ineffective
Mary
charge included
section
and, thus, vio
defense
jeopardy
a double
or about
alleged that “[o]n
land indictment
to
right
Amendment
lated
Sixth
2, 2004,
Ma
in the District
September
plain error review
apply
We
counsel.
in
a firearm
Kelly possessed/used
ryland,”
issue because
jeopardy
the double
crime,
trafficking
aof
furtherance
pass
with
alleged error
“allow[ed][the]
pos-
Case,
“conspiracy to distribute
namely,
In re Sealed
objection”
out
below.
or limb.”
put
jeopardy of life
per-
Jeopardy
any
Clause bars
4. The Double
twice
"subject
offence to be
for the same
son
with intent
to distribute
and a conspiracy
[cocaine
sess
to commit that crime are
(em-
Md. Indictment at 19
not the
base].”
‘same offence’ for
jeopardy
double
added).
The section
Id. phases
charge
purposes.”
Thus,
predicate
crimes supporting the
Felix,
Applying
analysis
the Court’s
924(c) charges
section
are not the same. we believe that
jeopardy plainly
double
Felix,
States v.
United
U.S.
does not
Kelly’s prosecution
bar
on the
(1992),
112 S.Ct.
cution”
(attempting
on a substantive crime
(explaining application
to manufacture methamphetamine).
of same-elements
test of Blockburger v.
382, 388-91,
States,
so U.S. at
831 change that fact-finding would additional fails, claim his as does therefore claim thus, and, need remand we not district rule of law Fed.R.Crim.P. as was fails Kelly’s plainly him he It inasmuch advised claim. have should a government obliged to raise a was not his counsel guilty pleading bring. not defense. could meritless assis of ineffective claim Kelly’s Rule 11 B. Kelly believes fails. also of counsel tance arguments three additional Kelly makes apparent ineffectiveness his counsel’s First, argues he II.6 under Fed.R.Crim.P. therefore, and, need we the record from was insufficient proffer the factual hearing, evidentiary an remand not cocaine. on PWID his conviction support on direct practice normal is our re- Second, argument makes the same he Soto, 132 United appeal. See supporting the factual garding proffer (D.C.Cir.1997). Although we F.3d 924(c). Third, he under section for an Kelly that remand with agree he did understand claims that not necessary, we evidentiary hearing is the cocaine to distribute assis had to intend claim of ineffective believe of PWID therefore step of the Strick order to be first fails at the tance “was with the nature counsel’s conduct did not understand test: his land argu- demanded competence these we review range charge. Again, Hill v. Lock cases.” in criminal he failed attorneys error because plain ments for 52, 56, 106 S.Ct. hart, 474 U.S. In re Sealed in district court. make them (internal (1985) quotation L.Ed.2d Case, F.3d at 352. omitted); v. Wash see Strickland
marks fails be argument first ington, evidence was “sufficient cause there (1984). The Strick L.Ed.2d 674 jury could conclude” reasonable which a information analysis examines the land committed, at least aided when he rec Kelly’s counsel available of, the abetted commission whether his and asks ommended Abreu, States v. PWID cocaine. proceed prejudiced decision counsel’s (D.C.Cir.1992). prove To 16,19 assuming that Even ings that followed. 841(a), government violation section both involved same firearm doubt beyond a reasonable show must the District charges and that section (1) “knowingly or intention the defendant act included was an overt PWID controlled substance ally” possessed there is nev charge, it. 21 U.S.C. intent to distribute to the sec bar no ertheless constitutional “ however, abet, ‘all 841(a).7 To aid and reviewing. The are charge we tion *8 affirma show some necessary is to that is a is not less of PWID offense substantive encourages at least participation tive to of the er-included of the to commit offender principal the offense, makes clear. as Felix that commit elements, proscribed as fense, its all 1377. No S.Ct. 503 U.S. at See (2) the defen- plea,” a basis for drugs, is a "factual possessed possess and conspired to nature each "the dant understands See involving Fe- distinct conduct. two acts (3) pleading” is 389-90, defendant lix, to which S.Ct. 1377 112 voluntary not result and did plea is "that the from the act distinct ("agreement [an] do to (other force, than promises or threats itself”). act plea agreement).” a promises in alia, requires, inter that 11 Fed.R.Crim.P. (1) supra note 1. 7. See that there court determine sentencing 832 ” Monroe,
by the statute.’ United States v. that he believed the going owner was (D.C.Cir.1993) 1374 (quot F.2d cocaine, sell the id. at jury reasonable Garrett, United States v. 720 F.2d could also find that he intended to aid the (D.C.Cir.1983)). Moreover, 713-14 “[who owner’s distribution of cocaine. See Unit- aids, ever ... pro abets induces or Gaulteau, ed States v. 4 F.3d commission, cures punish [an offense’s] (D.C.Cir.1993) (“intent to may distribute 2(a). principal.” able as a 18 U.S.C. possession inferred from of ... quan- though Kelly Even was not indicted as an tity drugs larger than per- needed for abettor, explained aider or we have that use”) (internal sonal quota- citations and “an indictment need specifically in omitted). tion marks an aiding abetting clude charge be cause, not,’ specified ‘whether or feder next argues al creating liability statute for aiding and proffer was insufficient support abetting ... ‘is considered embodied in full guilty plea on count three —the section ” in every federal indictment.’ United 924(c) count. support order to a con States v. Lam Kwong-Wah, 924 F.2d viction 924(c), under 18 U.S.C. gov (D.C.Cir.1991) (quoting United States ernment beyond must show a reasonable Michaels, (9th 796 F.2d Cir. doubt that “during and in relation to” 1986)) Michaels). (emphasis Thus, as a “drug crime,” trafficking the defen long proffer as the allows the district court dant firearm, or “use[d] carrie[d] or ... to conclude that a jury reasonable could in crime, furtherance of ... pos such find aided and abetted the sessed] firearm.” 18 U.S.C. cocaine, PWID it suffices. 924(c)(1)(A). cocaine, PWID charged in proffer manifests that Kelly one, count is a “drug trafficking crime” meant to possession aid the owner’s of the 924(c)(2). statute. See id. protecting it from loss. He Moreover, is undisputed it the fire kept stated that he a firearm in the apart arm belonged Kelly. Regarding the ment to protect himself and his property, nexus between the possession and the (“Yeah. see Tr. I yeah, if it mean — drug crime, trafficking we have identified it, mean, came yes. I’m I’m in the test, a multi-factor including type “the house, I ain’t going you to let come in drug activity conducted; accessibility of there nothing, and take not while I’m in firearm; type firearm; whether the there.”), he intended to return stolen; firearm is whether owner, drugs to their id. at see 93. He of the legal firearm is or illegal; whether explained further put backpack loaded; the firearm is proximity apartment his car pre because had firearm to profits; viously been broken into. Id. at the time and circumstances under which When asked whether he transferred the the firearm is found.” United States v. drugs to apartment them, to protect Wahl, (D.C.Cir.2002) 290 F.3d Kelly responded that he “didn’t give it that (citing Ceballos-Torres, United States v. much thought ... prob [but] fe[lt] like it’s (5th Cir.2000)). 414-15 Re ably a better chance bag that the would be lying factors, on these we concluded that safe [sic] house than in the truck.” *9 there was Id. at sufficient to evidence sustain 92-93. This is sufficient to show the Kelly defendant’s section intended to aid the owner’s possession of the where Moreover, “[t]he firearm was on top cocaine. the shelf based upon the amount of center, of cocaine the entertainment involved front of (497.1 grams) as Kelly’s well as admission which [the standing defendant] was when he show that have would to government loaded entered[; gun was t]he police the with and that he “did so to 5.6 cocaine possessed proximity in close found [and] ... Tr. 33. amount at a small it.” and to distribute the intent base of cocaine grams shortly high- recovered cash[;] Furthermore, government was the the as of placet; had taken transaction participating” “actively after was lights, gun ille- the possessed defendant] requi- the regarding and the the discussion during here, Similarly at 376-77. Id. gally.” Br. of cocaine. the to distribute site intent cocaine of grams the 497.1 FBI found “the the 24; Finally, at Tr. 45-65. Appellee appellant’s of 20 feet within hydrochloride plea the Kelly filed before submission loaded, 9-mm. Glock possessed, illegally of ele- all the recited explicitly hearing the mattress was gun, which to PWID, the intent including ments of [and] FBI arrived the when bedroom “an distribute, particular and noted $46,500 in cash the [in found agents also personal- the narcotics to distribute intent at 28. Appellee Br. of apartment].” long as as distribution unnecessary is ly in Wahl those parallel closely facts These the purpose of the end by someone jury to find a reasonable allow would in Con- Kelly’s Submission possession.” 924(c). section violating of Kelly guilty Hearing at United Plea with nection that his Kelly argues Finally, (D.D.C. 06-153 No. Kelly, Cr. v. States voluntary be knowing was not plea 2006) The original). (emphasis in Nov. necessary of the not aware “[h]e cause Kelly’s pre-hear- with colloquy together — to dis to ‘intend’ he needed element would reasonable lead filing plainly — to him be for in order tribute Kelly understood to believe that jury to distrib intent with [possession of we Because charge. of the nature PWID means distribute’ ‘intent to and that ute] plainly did not court hold that district Ap Br. of level scienter.” heightened whether, as err, decide need not we truly be pleaA “cannot at 20-21.8 pellant the er- invited argues, government possesses defendant voluntary unless See Br. complains. he which rors of relation to the law in understanding of an 22-23. Appellee States, v. McCarthy the facts.” reasons, we affirm foregoing For the 1166, 22 court. of the district judgment “have must The court L.Ed.2d that would the defendant colloquy with ordered. So person believe reasonable lead a nature of the understood
the defendant
concurring in
ROGERS,
Judge,
Circuit
Dewalt, 92 F.3d
charge.” United
judgment:
(internal quota
(D.C.Cir.1996)
any
bars
Jeopardy Clause
Double
omitted).
de
“[A]
citations
tion marks
offence
for the same
“subject
person
rea
mens
ele
of the
ignorance
fendant’s
limb.” U.S.
life or
put
twice
offense
ment
Const,
pro-
three
provides
ItV.
amend.
involuntary
his guilty
renders
prosecution for
tections, against
Id. at
law.”
of constitutional
a matter
as
(2) a
acquittal;
second
after
court
colloquy with
Here
con-
offense after
for the
prosecution
nature
Kelly understood
manifests
punishments
multiple
viction; by the
advised
He was
charge.
Carolina
North
offense.
count,
the same
the PWID
prove
that to
a different
challenge calls for
voluntariness
proffers as
Although
have found
we
them,
inquiry.
support
sufficient
counts
both
*10
834
Pearce,
711, 717,
395
2072,
U.S.
89 S.Ct.
23 and carrying
aof
firearm with respect to
L.Ed.2d 656
This case concerns
the PWID. Appellant
acquitted
on all
interaction
first of
protec-
those
charges in Maryland
after
trial.
jury
924(c),
§
tions with U.S.C.
impos-
See Judgement of Acquittal, Edward Ken-
es an
term of imprisonment
additional
for neth Kelly,
Briscoe,
States
No.
“any
who,
person
during and in relation to
(D.Md.
2006).
04-0559
May,
Although
any
drug trafficking crime ... uses or
the Assistant
Attorney
U.S.
in D.C. was
firearm,
carries a
inwho
furtherance of unfamiliar with Maryland
charges, the
crime,
such
any
possesses a firearm.”
record
indicated
Maryland
con-
Appellant
Ohio,
relies on Brown v.
432 spiracy encompassed the
period
same time
S.Ct.
Brown, 2221). 432 U.S. at Specifically, appellant court, The district contends that sua sponte, raised the possession of gun the same double issue and continued the location on the same provided date plea hearing government allow and de- 924(c) § basis for the charges in both the fense counsel to examine the issue. After Maryland indictments, and D.C. and that recess, a brief the district court was unable charge the D.C. therefore was barred un- to resolve whether the gun seized der the Jeopardy Double Clause. The fed- appellant’s home the District of Colum- eral indictment returned in Maryland by bia the FBI was the underly- charged appellant with to dis- § con- but tribute and possess with intent to distrib- cluded that § the D.C. charge was (“PWID ute conspiracy”) cocaine and co- not barred the Double Jeopardy Clause caine base between November 2000 and because there were different of- December Maryland, 2004 in the District fenses charged in Maryland and D.C. Columbia, elsewhere, in violation of indictments, namely § 846 PWID con- § U.S.C. use aof communications spiracy as distinct § from the 841 PWID. facility in connection therewith in violation court, This relying on United States v. 843(b), of 21 U.S.C. and using, carrying, Felix, S.Ct. possessing with respect firearm (1992), L.Ed.2d 25 Op. affirms. at 8. Al- that conspiracy, in violation of 18 U.S.C. though I agree that double jeopardy does on September 2004 in Mary- bar appellant’s § prosecution, land. The federal indictment returned in Felix, alone, does not decide the question. the District of Columbia charged appellant with a violation of Felix was for decided when the Supreme (“PWID”) intent to Court employed distribute co- different definition of caine on September D.C., 2004 in and a “same offence” in the Double Jeopardy violation of possession, use, Clause for prosecutions successive than for
835
Dixon,
v.
however,
States
ruled,
by United
prosecu-
in the
punishments
multiple
2849,
125
688,
S.Ct.
113
508,
Corbin,
509 U.S.
495 U.S.
v.
Grady
In
tion.
“same
(1993),
held that
which
556
548 L.Ed.2d
2084,
L.Ed.2d
109
521, 110 S.Ct.
Jeopardy Clause
in the Double
a same-
applied
offence”
Court
(1990),
Supreme
things, and
two different
prosecutions,
not mean
could
successive
for
test
conduct
(or
test described
adopted
same-elements
same-elements
reasoning that
prose
devel-
had been
successive
test,
for both
Blockburger
in
Blockburger1)
704,
punish-
113
multiple
id. at
of
punishments,
the context
cutions
in
oped
was
prosecution,
whether
single
“inquires
ain
test
imposed
2849. That
ments
S.Ct.
the constitution-
for
account
not con
an element
insufficient
contains
each offense
prosecu-
by successive
other;
they
raised
are the
al concerns
not
if
tained
518,
S.Ct.
110
at
495 U.S.
jeopardy
tions.
bars
and double
offence’
‘same
prosecu-
subsequent
“any
Grady,
pros
Under
successive
punishment and
additional
to establish
government,
which the
tion in
696, 113S.Ct. 2849.
Id.
ecution.”
of an
element
an essential
test
re
the same-elements
Applying
conduct that
prove
will
prosecution,
in that
States v.
of United
construction
quires
defen-
which the
for
an offense
constitutes
(D.C.Cir.1998), and
Wilson,
F.3d 732
160
was
prosecuted”
already been
has
dant
(2d
199
245
Finley,
F.3d
v.
States
United
(cita-
2084
521,
S.Ct.
110
Id. at
barred.
In
Cir.2001),
relies.
appellant
on which
omitted).
out an
carved
simply
Felix
tions
§
two
Wilson,
court held
this
of-
conspiracy
Grady
exception
where
charged even
not be
could
violations
390-91, 112
Felix,
fenses, see
predi
two
had committed
the defendant
the rule
“a
1377,
reaffirmed
S.Ct.
only
was
offenses,
long as there
so
cate
to com-
conspiracy
and a
crime
substantive
at 749.
F.3d
160
of
firearm.
one “use”
offence’
the ‘same
are not
crime
mit that
of
predicate
case, although
In that
id. at
purposes,”
jeopardy
for double
support
they could
merge,
did not
fenses
omitted).
(citations
1377
§
because
only
one
case,
question
appellant’s
In
different
only by
distinguished
they were
charge was
§
841 PWID
whether
conduct.
different
than
rea rather
mens
§ 846 PWID
prior
light
barred
Wilson,
broadened
Congress
Id. After
double
whether
but
charge
further
possession
punish
barred
offense, in
addition
ance of
violating
appellant
charging
386, 112
Pub.L.
105
carrying.
use and
of the same
possession
twice based
United
(Nov. 13,1998); see also
Stat.
of
day in furtherance
the same
gun on
(D.C.Cir.
Wahl,
375
v.
States
Grady,
Under
drug offenses.
overlapping
Wilson,
at 748-49.
F.3d
2002);
160
so that the
appropriate
would
a remand
Wilson
applied
Circuit
Finley,
Second
whether
determine
court could
district
924(c),
held
revised
to the
conduct
gun-related
charged with
“where
defendant
See United
charges.
and D.C.
aof
possession
constructive
continuous
113
Olano, 507 U.S.
v.
States
of a
part
a sale
in furtherance
firearm
(1993); United
L.Ed.2d
S.Ct.
contin
narcotics, coupled with
quantity
563, 569, 109
Broce, 488 U.S.
States
immedi
remainder
ued
(1989); 102 L.Ed.2d
S.Ct.
sale,” only one
ately following
283, 286-87
Saro, 24 F.3d
though mul-
even
supported
can be
Grady was over-
(D.C.Cir.1994); Op. at 6.
L.Ed. 306
S.Ct.
States,
Blockburger v. United
*12
tiple predicate offenses have been commit-
appellant does not maintain that Mary-
ted.
Together,
distribute
them in
Finley
Wilson
Dis-
instruct
trict
Columbia,
Ashe,
under the
see
prong
U.S. at
statute,
924(c)
444,
multiple §
offenses, and that under the prong, use
United States may charge only as many 924(c) violations as there are uses. See
Finley,
and Finley do not hold that jeopar- double
dy bars Congress from authorizing multi- §ple charges based same, on Salah N. OSSEIRAN, Appellee nearly same, conduct, Op. at 8 n. they do construe the statute to authorize only one § charge in certain circum- INTERNATIONAL FINANCE stances, if even the defendant has commit- CORPORATION, ted more than predicate one offense. Appellant. cases, such Congress whether could au- separate thorize charges is No. 07-7122. besides the point; a second charge would be United States Court Appeals, “same offence” Double Jeopardy District of Columbia Circuit. Clause. Argued Sept.
Because two charges allege appellant’s possession of the firearm in Decided Jan. furtherance of two offenses separate are time, place, scope, Op.
at 8 n. I concur the judgment
appellant’s claims under the Double Jeop-
ardy Clause, Federal Rule of Criminal
Procedure and for ineffective assis-
tance of counsel each fail. Op. at 8-9.
However, because the government prose-
cuted appellant the second
charge after he acquitted of the first charge, it is worth noting that
appellant does not raise a collateral estop-
pel claim
Swenson,
under Ashe v.
90 S.Ct.
To do appellant so would have needed to
show that an fact, issue of relevant to
D.C. charges, was finally determined in
case,
Ashe,
see