{\rtf1\ansi\deff0\deftab720{\fonttbl{\f0\fswiss MS Sans Serif;}{\f1\fdecor\fcharset2 Symbol;}{\f2\fswiss\fprq2 System;}}
{\colortbl\red0\green0\blue0;}
\deflang1033\pard\plain\f0\fs17 
\par No. 94-8769\tab 
\par 
\par In the Supreme Court of the United States
\par 
\par OCTOBER TERM, 1995
\par 
\par TOMMY L. RUTLEDGE, PETITIONER
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE SEVENTH CIRCUIT
\par 
\par BRIEF FOR THE UNITED STATES
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par JOHN C. KEENEY
\par Acting Assistant Attorney General
\par 
\par MICHAEL R. DREEBEN
\par Deputy Solicitor General
\par 
\par JAMES A FELDMAN
\par Assistant to the Solicitor General
\par 
\par RICHARD A. FRIEDMAN
\par Attorney
\par 
\par Department of Justice
\par Washington, D.C. 20530
\par (202)514-2217
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par QUESTION PRESENTED
\par 
\par Whether petitioner's conviction and concurrent
\par sentence for drug conspiracy, in violation of 21 U.S.C.
\par 846, must be vacated in light of his conviction and
\par sentence for operating a continuing criminal enter-
\par prise (CCE), in violation of 21 U.S.C. 848, where
\par the "in concert with" element of the CCE violation
\par was based on the same agreement as the Section 846
\par conspiracy.
\par 
\par (I)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par TABLE OF CONTENTS
\par 
\par Page
\par 
\par Opinion below . . . . 1 
\par Jurisdiction . . . . 1 
\par Statutory provisions involved . . . . 2 
\par Statement . . . . 2 
\par Summary of argument . . . . 4 
\par Argument:
\par I. Petitioner's judgments of conviction and con-
\par current life sentences for the CCE and drug
\par conspiracy offenses should be affirmed . . . . 6 
\par A. The Double Jeopardy Clause permits mul-
\par tiple punishment for the CCE and drug
\par conspiracy offenses if that is the intention
\par of Congress . . . . 8 
\par B. Congress intended to permit separate, con-
\par current punishments for a Section 846 drug
\par conspiracy and CCE offense based on the
\par same agreement . . . . 12 
\par II. If the Court concludes that the entry of sepa-
\par rate convictions and concurrent sentences con-
\par travenes congressional intent, the appropriate
\par course would be to require entry of a single,
\par merged conviction and sentence on the two
\par counts . . . . 24 
\par Conclusion . . . . 31 
\par Appendix . . . . 1a
\par 
\par TABLE OF AUTHORITIES
\par 
\par Cases:
\par 
\par Albernaz v. United States, 450 U.S. 333 (1981) . . . . 8
\par Ball v. United States, 470 U.S. 856 (1985) . . . . 8, 17, 18,
\par 19, 20, 22, 26
\par Bell v. United States, 349 U.S. 81 (1955) . . . . 11
\par Blockburger v. United States, 284 U.S. 299 (1932) . . . . 8
\par Garrett v. United States, 471 U.S. 773 (1985) . . . . 8, 17
\par Gore v. United States, 357 U.S. 386 (1958) . . . . 11
\par Iannelli v. United States, 420 U.S. 770 (1975) . . . . 10
\par 
\par (III)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par IV
\par 
\par Cases-Continued               
\par 
\par Page
\par 
\par Jeffers v. United States:
\par 423 U.S. 1066 (1976) . . . . 13
\par 432 U.S. 137 (1977) . . . . 9, 10, 12, 13, 15, 17
\par Missouri v. Hunter, 459 U.S. 359 (1983) . . . . 8
\par Ohio v. Johnson, 467 U.S. 493 (1984) . . . . 8
\par Ray v. United States, 481 U.S. 736 (1987) . . . . 7, 27
\par Tinder v. United States, 345 U.S. 565 (1953) . . . . . . . 26
\par United States v. Aiello. 771 F.2d 621 (2d Cir.
\par 1985) . . . . 25, 29
\par United States v. Andersson, 813 F.2d 1450 (9th
\par Cir. 1987) . . . . 28
\par United States v. Ball, 734 F.2d 965 (4th Cir. 1984),
\par vacated and remanded, 470 U.S. 856 (1985) . . . . 18
\par United States v. Benevento, 836 F.2d 60 (2d Cir.
\par 1987), cert. denied, 486 U.S. 1043 (1988) . . . . 25-26
\par United States v. Bond, 847 F.2d 1233 (7th Cir.
\par 1988) . . . . 12, 21
\par United States v. Broce, 488 U.S. 563 (1989) . . . . 11
\par United States v. Butera, 677 F.2d 1376 (11th Cir.
\par 1982), cert. denied, 459 U.S. 1108 (1983) . . . . 27
\par United States v. Butler, 885 F.2d 195 (4th Cir.
\par 1989) . . . . 30
\par United States v. Chambers, 944 F.2d 1253 (6th Cir.
\par 1991), cert. denied, 502 U.S. 1112 & 503 U.S. 989
\par (1992) . . . . 12, 15, 30
\par United States v. Cloutier, 966 F.2d 24 (1st Cir.
\par 1992) . . . . 30
\par United States v. Compton, 5 F.3d 358 (9th Cir.
\par 1993) . . . . 28
\par United States v. Cruz, 805 F.2d 1464 (11th Cir.
\par 1986), cert. denied, 481 U.S. 1006 & 482 U.S. 930
\par (1987) . . . . 30
\par United States v. De Bright, 730 F.2d 1255 (9th Cir.
\par 1984)  . . . . 27
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par Cases-Continued:
\par 
\par Page
\par 
\par United States v. Devine, 934 F.2d 1325 (5th Cir.),
\par cert. denied, 502 U.S. 929 (1991), 502 U.S. 1047,
\par 1064, 1065, 1092 & 1104 (1992) . . . . 12 
\par United States v. Fernandez, 916 F.2d 125 (3d Cir.
\par 1990), cert. denied, 500 U.S. 948 (1991) . . . . 14 
\par United States v. Ganci, 47 F.3d 72 (2d Cir. 1995) . . . . 12
\par United States v. Hernandez-Escarsega, 886 F.2d
\par 1560 (9th Cir. 1989), cert. denied, 497 U.S. 1003
\par (1990) . . . . 28
\par United States v. Hooper, 432 F.2d 604 (D.C. Cir.
\par 1970) . . . . 27 
\par United States v. Jelinek, 57 F.3d 655 (8th Cir.
\par 1995), petition for cert. pending, No. 95-5343 . . . . 15, 30 
\par United States v. Lampley, 573 F.2d 783 (3d Cir.
\par 1978) . . . . 27 
\par United States v. Langella, 804 F.2d 185 (2d Cir.
\par 1986) . . . . 11 
\par United States v. Lindsay, 985 F.2d 666 (2d Cir.),
\par cert. denied, 114 S. Ct. 103 (1993) . . . . 12, 25 
\par United States v. Liquori, 5 F.3d 435 (9th Cir. 1993),
\par cert. denied, 114 S. Ct. 738 (1994) . . . . 23 
\par United States v. Luciano-Mosquera, Nos. 92-1923
\par et al., 1995 WL 500601 (lst Cir. Aug. 28, 1995) . . . . 29 
\par United States v. Marable, 578 F.2d 151 (5th Cir.
\par 1978) . . . . 11 
\par United States v. McHan, 966 F.2d 134 (4th Cir.
\par 1992) . . . . 11 
\par United States v. Nelson, 733 F.2d 364 (5th Cir.),
\par cert. denied, 469 U.S. 937 (1984) . . . . 27 
\par United States v. Nyhuis, 8 F.3d 731 (11th Cir.
\par 1993), cert. denied, 115 S. Ct. 56 (1994) . . . . 12 
\par United States v. Palafox, 764 F.2d 558 (9th Cir.
\par 1985) . . . . 27, 28
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par VI
\par 
\par Cases-Continued               
\par 
\par Page
\par 
\par United States v. Peters, 617 F.2d 503 (7th Cir.
\par 1980) . . . . 27
\par United States v. Rivera, 900 F.2d 1462 (l0th Cir.
\par 1990) . . . . 30
\par United States v. Ruggiero, 754 F.2d 927 (11th Cir.),
\par cert. denied, 471 U.S. 1127, 1137 (1985) . . . . 11
\par United States v. Sanchez-Lopez, 879 F.2d 541 (9th
\par Cir. 1989) . . . . 28
\par United States v. Sanchez-Vargas, 878 F.2d 1163
\par (9th Cir. 1989) . . . . 28
\par United States v. Shabani, 115 S. Ct. 382 (1994) . . . . 16
\par United States v. Vargas, 615 F.2d 952 (2d Cir.
\par 1980) . . . . 27
\par United States v. Wilson:
\par 440 F.2d 1103 (5th Cir.), cert. denied, 404 U.S. 882
\par (1971) & 405 U.S. 1016 (1972) . . . . 29
\par 671 F.2d 1138 (8th Cir.), cert. denied, 456 U.S. 994
\par (1982) . . . . 27
\par 
\par Constitution, statutes and Sentencing Guidelines:
\par 
\par U.S. Const. Amend. V (Double Jeopardy Clause)
\par . . . . 4, 8, 10, 12, 13
\par Sentencing Reform Act of 1984, Pub. L. No. 98-473,
\par Tit. II, Ch. II, 98 Stat. 1987
\par 212, 98 Stat. 1987 . . . . 22
\par 218, 98 Stat. 2027 . . . . 22
\par 18 U.S.C. 922(g) . . . . 2
\par 18 U.S.C. 922(h)(1) (1982) . . . . 18
\par 18 U.S.C. 924(c) . . . . 2
\par 18 U.S.C. App. 1202(a)(1) (1982) . . . . 18
\par 18 U.S.C. 3013 . . . . 2, 4, 7, 27
\par 21 U.S.C. 802(43) (to be codified in 1994 edition) . . . . 23
\par 21 U.S.C. 841(a)(1) . . . . 2
\par 21 U.S.C. 841(b)(1)(A) . . . . 23
\par 21 U.S.C. 846 . . . . passim, 1a
\par 21 U.S.C. 848 . . . . 2, 16, 1a
\par 21 U.S.C. 848(a)-(e) . . . . 2, 1a-5a
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par VII
\par 
\par Statutes and Sentencing Guidelines-Continued:
\par 
\par Page
\par 
\par 21 U.S.C. 848(b) . . . . 16, 2a
\par 21 U.S.C. 848(c) . . . . 3, 3a
\par 21 U.S.C. 848(c)(2) . . . . 9, 3a
\par 21 U.S.C. 848(c)(2)(A) . . . . 19, 3a
\par 21 U.S.C. 848(c)(2)(B) . . . . 19, 3a
\par 21 U.S.C. 848(e) . . . . 16, 4a
\par 
\par Sentencing Guidelines
\par 
\par 4A1.1 . . . . 22
\par 4A1.2, Application Note 3 . . . . 23
\par 4A1.2(a)(2) . . . . 23
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par In the Supreme Court of the United States
\par       
\par OCTOBER TERM, 1995
\par   
\par No. 94-8769
\par 
\par TOMMY L. RUTLEDGE, PETITIONER
\par     
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par ON WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE SEVENTH CIRCUIT
\par 
\par BRIEF FOR THE UNITED STATES
\par 
\par OPINION BELOW
\par 
\par The opinion of the court of appeals (J.A. 25-47) is
\par reported at 40 F.3d 879.
\par 
\par JURISDICTION
\par 
\par The judgment of the court of appeals was entered on
\par November 10, 1994. A petition for rehearing was de-
\par nied on January 3, 1995. J.A. 48. The petition for a
\par writ of certiorari was filed on April 3, 1995, and was
\par granted on June 26, 1995. J.A. 49. The jurisdiction of
\par this Court rests on 28 U.S.C. 1254(1).
\par 
\par (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 2
\par 
\par STATUTORY PROVISIONS INVOLVED
\par 
\par This case involves the following statutory provi-
\par sions, which are set forth in an appendix to this brief:
\par 21 U.S.C. 846 (drug conspiracy); 21 U.S.C. 848(a)-(e)
\par (continuing criminal enterprise).
\par 
\par STATEMENT
\par 
\par After a jury trial in the United States District
\par Court for the Central District of Illinois, petitioner
\par was convicted of operating a continuing criminal
\par enterprise (CCE) (Count 1), in violation of 21 U.S.C.
\par 848; conspiring to distribute cocaine (Count 2), in
\par violation of 21 U.S.C. 846; distributing cocaine (Count
\par 3), in violation of 21 U.S.C. 841(a)(1); possessing a
\par firearm after being convicted of a felony (Count 4), in
\par violation of 18 U.S.C. 922(g); and using or carrying a
\par firearm during and in relation to a drug trafficking
\par offense (Counts 5, 6), in violation of 18 U.S.C. 924(c).
\par J.A. 8-9. He was sentenced to concurrent terms of life
\par imprisonment without possible release for the CCE,
\par drug conspiracy, and distribution of cocaine offenses,
\par and other terms of imprisonment for the other
\par offenses. He was not fined, but he was ordered to pay
\par a special assessment on each Count of $50 under 18
\par U.S.C. 3013. J.A. 9-10. The court of appeals affirmed.
\par J.A. 25-47.
\par 1. Petitioner was the leader of a large drug
\par organization that distributed multi-kilogram quan-
\par tities of cocaine from 1988 to 1990. He bought cocaine
\par from the Latin Kings street gang in Chicago and
\par distributed it in Warren County, in northern Illinois.
\par Petitioner kept firearms for protection, and he also
\par traded firearms for cocaine. J.A. 26-28.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3
\par 
\par 2. The second superseding indictment charged
\par petitioner with the six offenses recited above. J.A. 2-
\par 7. In order to convict petitioner on the CCE charged
\par in Count 1, the jury had to find that petitioner com-
\par mitted a felony drug offense in violation of Sub-
\par chapter I or II of Chapter 13 of Title 21, as part of
\par a continuing series of such violations, which were
\par undertaken "in concert with" five or more other
\par persons of whom the defendant was an organizer,
\par supervisor, or manager, and from which he obtained
\par substantial income or resources. 21 U.S.C. 848(c);
\par J.A. 2-3. In order to convict petitioner of the drug
\par conspiracy charged in Count 2, the jury was required
\par to find that petitioner conspired to possess cocaine
\par with intent to distribute it and that he distributed
\par cocaine. The Count 2 drug conspiracy charge was
\par based on the same criminal agreement that formed
\par the basis of the "in concert with" element of the
\par Count 1 CCE charge; it involved the same persons,
\par the same time periods, and the same overt acts. J.A.
\par 2-5. All counts were submitted to the jury and the jury
\par returned guilty verdicts on all of them. J.A. 8.
\par 3. The district court sentenced petitioner to
\par concurrent terms of life imprisonment without
\par possible release for the Count 1 CCE offense, the
\par Count 2 drug conspiracy offense, and the Count 3
\par substantive cocaine-distribution offense. J.A. 10. The
\par court also imposed ten years' imprisonment for the
\par Count 4 offense of possession of a firearm as a
\par convicted felon, to run concurrently with the three
\par life sentences; five years' imprisonment for the Count
\par 5 offense of using or carrying a firearm during and in
\par relation to a drug trafficking offense, to run con-
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4
\par 
\par secutively to all other sentences, and ten years'
\par imprisonment for the like offense under Count 6, to
\par run consecutively to all other sentences. Ibid. The
\par court imposed the $50 special assessment under 18
\par U.S.C. 3013 on each count, for a total of $300. J.A. 9.
\par 4. The court of appeals affirmed. J.A. 2547. Peti-
\par tioner claimed that his conviction and sentence on
\par both the CCE and the drug conspiracy charge violated
\par the Double Jeopardy Clause, because it amounted to
\par punishing him twice for the same offense. The court
\par of appeals rejected that claim, reasoning that, "[w]hile
\par the conspiracy charge is a lesser included offense of
\par the CCE charge, double jeopardy is not implicated as
\par long as [the] district court does not impose cumu-
\par lative sentences for the crimes." J.A. 37-38. The
\par court held that, "by imposing concurrent sentences,
\par the district court did not impose a cumulative penalty,
\par and [petitioner's] sentence is proper." J.A. 38.
\par      
\par SUMMARY OF ARGUMENT
\par 
\par It is well settled that a defendant may be indicted,
\par tried, and found guilty by a jury in a single proceeding
\par of both violating the CCE statute and committing a
\par drug conspiracy in violation of 21 U.S.C. 846, where
\par the same agreement is involved in both offenses. The
\par question in this case is whether a court may enter
\par dual convictions and concurrent sentences  based on a
\par jury verdict that finds the defendant guilty of both the
\par CCE and the conspiracy charge. As with other ques-
\par tions about whether multiple punishments may be
\par imposed in a single proceeding for the same offense,
\par the answer to that question turns on congressional
\par intent. In our view, the structure, legislative history,
\par and purposes underlying the CCE and drug con-
\par spiracy statutes indicate that Congress intended that
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 5
\par 
\par a defendant convicted of both be subject to dual con-
\par victions and concurrent sentences.
\par While the conduct prohibited by the CCE and drug
\par conspiracy statutes is related, the two provisions
\par differ substantially. The elements of each offense and
\par the punishments for each offense are defined in dis-
\par tinct statutes that do not refer to each other. More-
\par over, the CCE offense is a hybrid conspiracy
\par substantive offense that is fundamentally different
\par from the "pure" Section 846 drug conspiracy offense.
\par As a result, many "simple" drug conspiracy cases will
\par not involve commission of a CCE offense by anyone, 
\par and in others at least some of the defendants who
\par conspired to distribute drugs would not have violated      
\par the CCE statute. Accordingly, it is reasonable to in-
\par fer that Congress intended that separate convictions
\par be entered when a defendant violates both the drug
\par conspiracy and CCE statutes, even though Congress
\par may not have intended that the total sentence exceed
\par what would be imposed for the more serious of the two
\par offenses (normally, the CCE).
\par An additional important reason for inferring that
\par Congress intended to permit entry of dual convictions
\par and concurrent sentences is that this procedure is
\par the simplest and most rational way to ensure that,
\par if a defendant's CCE conviction is ultimately over-
\par turned on appeal or collateral attack, he would still
\par be punished for his commission of a Section 846
\par drug conspiracy. Congress would not have wanted
\par to permit such a defendant to escape punishment, or
\par to require complicated procedures for its imposition.
\par And there is no reason to think that Congress would
\par have wished to protect a defendant from the possible
\par adverse consequences flowing from the entry of the
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 6
\par 
\par second conviction, because a defendant convicted of a
\par CCE offense is not likely to experience collateral
\par consequences from the entry of a drug conspiracy
\par conviction when that conviction carries a concurrent
\par sentence with the CCE.
\par If the Court holds that Congress did not intend to
\par permit dual convictions and concurrent sentences,
\par the Court must determine. the procedure a district
\par court should follow when a jury returns verdicts of
\par guilty on CCE and drug conspiracy charges based on
\par the same agreement. In our view, the most efficient
\par and workable approach is that adopted by the Second
\par Circuit, under which the two verdicts of guilty on the
\par CCE and Section 846 drug conspiracy counts merge
\par into a single judgment of conviction, with a single
\par sentence that can be no greater than the sentence
\par that would have been imposed for the more serious of
\par the two offenses. Under that approach, the defendant
\par suffers no conceivable adverse consequences.  The
\par government, however. is ensured that, if the CCE
\par conviction (but not the drug conspiracy conviction) is
\par ever reversed, a court can still punish the defendant
\par for the Section 846 drug conspiracy of which the jury
\par found him guilty.
\par       
\par ARGUMENT
\par 
\par I. PETITIONER'S JUDGMENTS OF CONVICTION
\par AND CONCURRENT LIFE SENTENCES FOR
\par THE CCE AND DRUG CONSPIRACY OFFENSES
\par SHOULD BE AFFIRMED
\par 
\par Petitioner was convicted of a Section 846 drug
\par conspiracy and of violating the CCE statute. Both
\par the Section 846 drug conspiracy and the "in concert
\par with" element of the CCE offense were satisfied by
\par proof of the same agreement. The Seventh Circuit
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 7
\par 
\par held that, in those circumstances, the district court
\par properly entered a separate conviction for each of the
\par two offenses and imposed concurrent prison senten-
\par ces for the two offenses. Petitioner was not subjected
\par to a longer term of imprisonment than he would have
\par received for the CCE offense alone and, since no fine
\par was imposed, he was not subjected to a greater fine
\par than he would have received for the CCE offense
\par alone. In our view, that disposition accords with
\par congressional intent regarding dual punishment for
\par CCE and a Section 846 drug conspiracy based on the
\par same agreement. The judgment of the Seventh Cir-
\par cuit should therefore be affirmed. 1.
\par 
\par ___________________(footnotes)
\par 
\par 1 We note that the judgments on the CCE and the drug
\par conspiracy counts were not concurrent in one respect: a special
\par assessment of $50 under 18 U.S.C. 3013 was imposed on peti-
\par tioner for each of those counts. J.A. 9; see Ray v. United
\par States, 481 U.S. 736, 737 (1987) (per curiam). Petitioner, how-
\par ever, did not challenge the imposition of those two special
\par assessments either in the court of appeals or in this Court, and
\par the question presented by the petition presupposes that the two
\par sentences are fully concurrent. See Pet. i; Pet. Br. i. There-
\par fore, it is not necessary to decide in this case whether it is
\par permissible to impose a special assessment as well as a separate
\par judgment of conviction on both the CCE and drug conspiracy
\par offenses. If it were necessary to reach that question, however,
\par the result would in our view turn on whether CCE and a
\par Section 846 drug conspiracy are in fact the "same offense" and
\par therefore subject to only a single assessment under 18 U.S.C.
\par 3013. For the reasons given in note 5, infra, we believe that
\par they are not, strictly speaking, the "same offense," and that
\par separate $50 special assessments on each count are therefore
\par appropriate.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 8
\par 
\par A. The Double Jeopardy Clause Permits Multiple
\par Punishment For The CCE And Drug Conspiracy
\par Offenses If That Is The Intention Of Congress
\par 
\par The Double Jeopardy Clause provides: "[N]or shall
\par any person be subject for the same offense to be twice
\par put in jeopardy of life or limb." U.S. Const. Amend. V.
\par The only aspect of the protection afforded by that
\par Clause at issue in this case is the protection against
\par multiple punishments for the same offense.  See
\par Missouri v. Hunter, 459 U.S. 359, 365-366 (1983). The
\par Court has made clear that, in a single proceeding, the
\par government may prosecute a defendant for multiple
\par offenses that are constitutionally the "same offense"
\par without violating the Double Jeopardy Clause. Ohio
\par v. Johnson, 467 U.S. 493, 500 (1984); see also Ball v.
\par United States, 470 U.S. 856,865 (1985). And when the
\par defendant is convicted in a single proceeding of two
\par offenses that are constitutionally the same, "the
\par Double Jeopardy Clause does no more than prevent
\par the sentencing court from prescribing greater pun-
\par ishment than the legislature intended.". Garrett
\par v. United States, 471 U.S. 773, 793 (1985), quoting
\par Missouri v. Hunter, 459 U.S. at 366; see Albernaz
\par v. United States, 450 U.S. 333, 344 (1981) ("[T]he
\par question of what punishments are constitutionally
\par permissible [in a single proceeding] is not different
\par from the question of what punishments the Legis-
\par lative Branch intended to be imposed.").
\par Normally, the Court determines whether two of-
\par fenses are the "same" for double jeopardy purposes
\par by determining whether each requires proof of an
\par element that the other does not. See Blockburger v.
\par United States, 284 U.S. 299 (1932). The CCE offense
\par and the drug conspiracy offense are. related to each
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 9
\par 
\par other, if at all, through one element. Among the
\par elements of a CCE violation is proof of "a continuing
\par series of violations of [Subchapters I or II of. Chap-
\par ter 13 of Title 21] * * * which are undertaken by
\par [the defendant] in concert with five or more other
\par persons." 21 U.S.C. 848(c)(2) (emphasis added). A
\par Section 846 drug conspiracy violation is established
\par by proof that the defendant "conspire[d] to commit
\par any offense defined in [Subchapter I of Chapter 13 of
\par Title 21]." If proof of the "in concert with" element of        
\par the CCE violation requires proof that the defendant
\par "conspire[d]" to commit a Subchapter I drug offense,
\par then a drug conspiracy in violation of Section 846 may
\par be viewed as a lesser included offense of the CCE
\par offense.
\par In Jeffers v. United States, 432 US. 137 (1977), the
\par Court considered, but did not resolve, the question
\par whether a drug conspiracy is a lesser included offense
\par of a CCE when the two charges rest on the same
\par agreement.  Four Justices, in a plurality opinion
\par written by Justice Blackmun, assumed without decid-
\par ing that drug conspiracy may be a lesser included
\par offense of the CCE offense. Id. at 150 & n.16. 2. Four
\par                                            
\par ___________________(footnotes)
\par 
\par 2 Justice Blackmun's opinion merely "assume[d]" and did
\par not actually decide that the CCE and drug conspiracy offenses
\par were the "same offense" in this context. See 432 U.S. at 149-
\par 150 & n.16 (opinion of Blackmun, J.); id. at 155 ("We have
\par concluded that [Congress did not intend to allow cumulative
\par punishment for violations of 846 and 848], and this again
\par makes it unnecessary to reach the lesser-included-offense
\par issue."). For purposes of rejecting Jeffers' claim that he could
\par not be prosecuted sequentially for the two offenses, it was
\par necessary only to assume, not decide, the same-offense ques-
\par tion: The plurality concluded that he could be prosecuted
\par sequentially under the facts of the case whether or not the two
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 10
\par 
\par other Justices, in an opinion by Justice Stevens,
\par apparently would have accepted that proposition with-
\par out qualification. Id. at 158-159 (opinion of Stevens, J.,
\par dissenting in part and concurring in the judgment in
\par part). Justice White, writing for himself, took the
\par view that CCE and drug conspiracy offenses were
\par never the same offense. Id. at 158 (White, J., con-
\par curring in the judgment in part and dissenting in
\par part). 3.
\par In our view, this case may be resolved on the same
\par assumption made by the plurality in Jeffers, i.e., that
\par a Section 846 drug conspiracy may be regarded as a
\par lesser included offense of CCE, when as a factual
\par matter both offenses involved the establishment of the
\par same criminal agreement: If the assumption made by
\par 
\par ___________________(footnotes)
\par 
\par offenses were the "same offense." Likewise, it was necessary
\par only to assume, not decide, that the two offenses were the
\par "same offense" for purposes of deciding the double-punishment
\par issue: If, as the plurality concluded, Congress did not intend
\par cumulative sentences when the CCE and drug conspiracy
\par offenses were based on identical criminal agreements, then a
\par court had no statutory authority to impose cumulative sen-
\par tences regardless of whether the two crimes were the "same
\par offense" under the Double Jeopardy Clause.
\par 
\par 3 Justice White relied on the rationale of Iannelli v. United
\par States, 420 U.S. 770 (1975), and therefore concluded that the
\par CCE and drug conspiracy offenses could support separate
\par prosecutions, as well as separate punishments. 432 U.S. at 158.
\par 
\par 4 Even if that assumption is correct, a particular charged
\par Section 846 conspiracy would not necessarily be a lesser
\par included offense of a particular charged CCE offense. Such a
\par relationship would exist only if proof of the greater offense on
\par the facts of the particular case necessarily proves all ele-
\par ments of the lesser offense, For example, although assault is
\par generally a lesser included offense of murder, a defendant
\par who assaults one individual and then murders another has
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 11
\par 
\par the Jeffers plurality is correct, then the issue in this
\par case is whether, and to what extent, Congress in-
\par tended separate punishments for a CCE offense and
\par a lesser included drug conspiracy. But even if that
\par assumption is not correct, the same analysis would
\par determine the outcome in this case, because a federal
\par court in any event has only the sentencing authority
\par granted by Congress and is limited to imposing the
\par punishment authorized by Congress. See, e.g., Gore v. 
\par United States, 357 U.S. 386 (1958); Bell v. United
\par States, 349 U.S. 81 (1955). Accordingly, we proceed on
\par the basis of the Jeffers assumption. 5.
\par 
\par ___________________(footnotes)
\par 
\par committed two entirely distinct offenses. Similarly, even if a
\par Section 846 drug conspiracy is a lesser included offense of a 
\par CCE, the two would be entirely distinct if the agreement on
\par which the Section 846 conspiracy is based is distinct from the
\par agreement on which the "in concert with" element of the CCE
\par is based. The courts of appeals have long been employed a multi-
\par factor, totality-of-the-circumstances test to determine whether
\par two charged agreements that form the basis for two conspiracy
\par or CCE charges are in fact the same. See e.g., United States
\par v. McHan, 966 F.2d 134, 137-138 (4th Cir. 1992); United States
\par v. Langella, 804 F.2d 185, 189 (2d Cir. 1986); United States v.
\par Ruggiero, 754 F.2d 927, 932 (11th Cir.), cert. denied, 471 U.S.
\par 1127, 1137 (1985); United States v. Marable, 578 F.2d 151, 154
\par (5th Cir. 1978); cf. United States v. Broce, 488 U.S. 563, 585 n.2
\par (1989) (Blackmun, J., dissenting). The application of that test
\par is not at issue in this case, because all parties to this case agree,
\par as in Jeffers, that the Section 846 drug conspiracy with which
\par petitioner was charged is based on the same agreement as the
\par "in concert with" element of the CCE.
\par 
\par 5 The government contended in Jeffers that drug con-
\par spiracy is not a lesser included offense of the CCE offense,
\par because the "in concert with" element does not require proof of
\par a conspiracy. See U.S. Br. in Jeffers at 23, No. 75-1805. Our 
\par argument was that a CCE defendant may be found to have
\par acted "in concert with" others so long as the defendant acted
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 12
\par 
\par B.  Congress Intended To Permit Separate, Con-
\par current Punishments For A Section 846 Drug
\par Conspiracy And CCE Offense Based On The
\par Same Agreement
\par 
\par 1. The Seventh Circuit's approach to the issue in
\par this case-permitting two convictions and concurrent
\par sentences-mirrors the result in Jeffers. 6. In Jeffers,
\par the defendant-like petitioner-was convicted of a
\par Section 846 drug conspiracy and CCE. He was
\par sentenced to the maximum applicable punishment of
\par 15 years' imprisonment and a $25,000 fine for the
\par Section 846 drug conspiracy, see 432 U.S. at 143
\par 
\par ___________________(footnotes)
\par 
\par with criminal intent, even if the other participants in the
\par enterprise were unaware of the true criminal character of the
\par enterprise and thus were not conspirators with him. Although
\par we adhere to that position, the courts of appeals have not
\par generally accepted it in recent years. See ,J.A. 37-38; United
\par States v. Nyhuis, 8 F.3d 731, 735 (11th Cir. 1993), cert. denied,
\par 115 S. Ct. 56 (1994); United States v. Lindsay, 985 F-2d 666, 670
\par (2d Cir.), cert. denied, 114 S. Ct. 103 (1993); United States v.
\par Chambers, 944 F.2d 1253, 1268 (6th Cir. 1991), cert. denied,
\par 502 U.S. 1112 and 503 U.S. 989 (1992); United States v. Devine,
\par 934 F.2d 1325, 1342 (5th Cir.), cert. denied, 502 U.S. 929 (1991),
\par 502 U.S. 1047, 1064, 1065, 1092 & 1104 (1992). As discussed,
\par however, this case in any event turns on congressional intent,
\par not whether the CCE and drug conspiracy statutes define the
\par same offense for double jeopardy purposes. Accordingly, in
\par our view, it is not necessary to resolve that issue in this case.
\par 
\par 6 See United States v. .Bond, 847 F.2d 1233, 1239 (7th Cir.
\par 1988) ("Jeffers treated [CCE and a Section 846 drug con-
\par spiracy] as sufficiently distinct to support separate convictions
\par (even to allow sequential trials), but not sufficiently distinct to
\par support cumulative punishments."); see also United States v.
\par Ganci, 47 F.3d 72, 73 (2d Cir. 1995) (citing Jeffers for the
\par proposition that dual convictions for CCE and drug conspiracy
\par do not violate the Double Jeopardy Clause).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 13
\par 
\par (opinion of Blackmun, J.), and he was sentenced to a
\par concurrent term of life imprisonment and a separate
\par fine of $100,000 for the CCE, id. at 145. This Court
\par did not require either of the convictions or either of
\par the prison sentences to he vacated. It did, however,
\par roll back the CCE fine to $75,000 "so that the two
\par fines together do not exceed $100,000," id. at 158, the
\par statutory maximum fine for the CCE offense at that
\par time and the amount that would have been imposed
\par had the defendant been convicted only of the CCE
\par offense. 7.
\par Jeffers differs from this case in one respect. Un-
\par like in this case, in Jeffers the Section 846 drug
\par conspiracy and the CCE conviction were separately
\par prosecuted. This Court declined to review Jeffers'
\par Section 846 conviction. See Jeffers v. United States,
\par 423 U.S. 1066 (1976). Therefore, the Court had before
\par it only the CCE conviction and sentence. Moreover,
\par since the Court concluded that the separate prose-
\par cution of the CCE and drug conspiracy charges did
\par not violate the Double Jeopardy Clause's protection
\par against multiple prosecutions, see 432 U.S. at 147-
\par 154 (opinion of Blackmun, J.); id. at 158 (White, J.,
\par                                      
\par ___________________(footnotes)
\par 
\par 7 The four-Member plurality represented by Justice Black-
\par mun's opinion, together with Justice White (who believed that
\par CCE and a drug conspiracy were entirely distinct offenses,
\par see 432 U.S. at 158), formed a majority for affirming the
\par conviction and prison sentence. Eight Members of the Court-
\par all but Justice White-voted in favor of partially rolling back
\par the fine. See id. at 154-158 (opinion of Blackmun, J.): id. at
\par 158-160 (Stevens, J., dissenting in part and concurring in
\par the judgment in part). In view of Justice White's opinion,
\par petitioner errs in stating (Br." 10) that the Court was
\par "unanimous[]" in holding that cumulative punishments for
\par CCE and drug conspiracy were barred.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 14
\par 
\par concurring in the judgment in part and dissenting in
\par part), it would have given the defendant a windfall if
\par the Court had nonetheless reversed his conviction or
\par sentence on the more serious offense, the later prose-
\par cuted CCE charge. Accordingly, the Court's dispo-
\par sition of the two convictions in Jeffers does not,
\par strictly speaking, govern the disposition of a case like
\par this, in which the defendant was tried in a single
\par proceeding for both CCE and a Section 846 drug
\par conspiracy, and in which the Court has before it both
\par convictions and sentences. We nevertheless believe
\par that the result in Jeffers appropriately reflects Con-
\par gress's intent with regard to punishment in cases
\par in which the defendant is convicted of CCE and
\par of a Section 846 drug conspiracy based on the same
\par agreement. 8.
\par 2. Petitioner argues (Br. 10) that "the Court [in
\par Jeffers] concluded * * * that Congress did not
\par intend to authorize cumulative punishment for con-
\par duct that violates both the conspiracy and CCE
\par statutes, and that the Double Jeopardy Clause there-
\par fore bars such cumulative punishment." If petitioner
\par intends to suggest that the Court determined in
\par Jeffers that Congress intended to bar dual convictions
\par 
\par ___________________(footnotes)
\par 
\par 8 The Third Circuit's approach to cases of this sort is some-
\par what similar to that of the Seventh Circuit. When a defendant
\par is convicted of CCE and a Section 846 drug conspiracy based on
\par the same agreement, the Third Circuit permits the sentencing
\par court to enter two convictions and a single, general sentence on
\par both counts, not to exceed the punishment available on the most
\par serious offense. See United States v. Fernandez, 916 F.2d 125
\par (3d Cir. 1990), cert. denied, 500 U.S. 948 (1991). We believe
\par that the Seventh Circuit's concurrent sentence approach is the
\par better practice and more precisely coincides with the result in
\par Jeffers.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 15
\par 
\par and concurrent sentences for CCE and Section 846
\par drug conspiracy, he is mistaken. As explained above,
\par the Court in Jeffers left intact the defendant's dual
\par convictions and concurrent sentences. The decision
\par thus could not be read to prohibit them. Instead, the
\par plurality in Jeffers used the term "cumulative senten-
\par ces" to refer to a different issue: the permissibility of
\par "pyramiding" sentences, i.e., permitting consecutive
\par sentences that resulted in total punishment greater
\par than would have been imposed for the more serious of
\par the two offenses. 9. The plurality found such "cumu-
\par lative penalties" to be improper. 432 U.S. at 157
\par (opinion of Blackmun, J.) (concluding that "Congress
\par did not intend to impose cumulative penalties un-
\par der 846 and 848"); see also id. at 160 (opinion
\par of Stevens, J.) (concurring in the judgment "to
\par the extent that it vacates the cumulative fines:).
\par But, since petitioner was not subject to that sort
\par of "cumulation" or "pyramiding" of penalties, the
\par Court's decision in Jeffers provides no support for his 
\par position that the mere entry of dual convictions and
\par concurrent sentences is impermissible. 10.
\par 
\par ___________________(footnotes)
\par 
\par 9 Jeffers, 432 U.S. at 156-158 (opinion of Blackmun, J.)
\par (discussing the issue of "pyramiding," and concluding that the
\par sentencing court had "no power * * * to impose * * * a fine
\par greater than the maximum permitted by 848" for the two
\par convictions). Ordinarily, the penalty for violating the CCE
\par statute is higher than that for violating Section 846. There
\par may be some unusual situations, however, in which the
\par application of the Sentencing Guidelines leads to the opposite
\par result. See, e.g., United States v. Jelinek, 57 F.3d 655, 660 (8th
\par Cir. 1995), petition for cert. pending, No. 95-5343; United
\par States v. Chambers, 944 F.2d at 1268-1269.
\par 
\par 10 As petitioner observes (Br. 11), since Jeffers was decided,
\par Congress has amended both the CCE and drug conspiracy
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 16
\par 
\par 3. An examination of the structure, history, and
\par purposes of the CCE and drug conspiracy statutes
\par confirms that the Jeffers result is what Congress
\par intended. Congress did not structure the CCE of-
\par fense simply as a multiplier or aggravation of a Sec-
\par tion 846 drug conspiracy. The CCE offense is defined
\par in a separate statutory provision, 21 U.S.C. 848. That
\par definition of the CCE offense makes no reference
\par to Section 846, the drug conspiracy statute, just
\par as Section 846 defines the drug conspiracy offense
\par without reference to the CCE statute. Moreover, the
\par definition of a CCE creates a complex, hybrid offense,
\par which has aspects of both an offense requiring
\par concerted activity ("in concert with") and a sub-
\par stantive offense (requirement of commission of "a
\par continuing series of [drug] violations * * * from
\par which [the defendant] obtains substantial income or
\par resources"). By contrast, Section 846 defines a pure
\par conspiracy offense; there is no requirement that any
\par overt act be committed. United States v. Shabani,
\par 115 S. Ct. 382 (1994). The penalties for CCE are also
\par prescribed independently of the penalties for any
\par other drug offense, and they are among the most
\par severe penalties m federal law. See 21 U.S.C. 848(b)
\par (life imprisonment without possibility of release); 21
\par U.S.C. 848(e) (death penalty). The penalties for a
\par Section 846 drug conspiracy depend on the penalties
\par 
\par ___________________(footnotes)
\par 
\par statutes, but has elected not to modify the penalty scheme in
\par any respect that bears on the question of multiple punishments.
\par That cannot be construed as congressional acquiescence in a
\par rule that dual convictions and concurrent sentences are imper-
\par missible for CCE and a Section 846 drug conspiracy based on
\par the same agreement, since neither Jeffers nor any other case
\par decided by this Court adopted such a rule,
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 17
\par 
\par prescribed for the crimes that are the object of the
\par conspiracy, and do not refer to or depend on the
\par penalties set forth for CCE.
\par All of those features suggest that Congress in-
\par tended to create a distinct statutory offense when it
\par enacted the CCE statute, and that it viewed the
\par commission of that offense as an order of magnitude
\par more serious than the participation in a simple
\par Section 846 drug conspiracy. In light of those distinc-
\par tions, it is appropriate to presume that Congress
\par intended to permit dual convictions with concurrent
\par sentences for violation of the drug conspiracy statute
\par and the CCE offense, particularly in view of the
\par practical disadvantages to the government of a con-
\par trary rule and the absence of adverse collateral
\par consequences to a defendant from the entry of such a
\par judgment, see pp. 20-24, infra. It is true that the
\par Jeffers plurality found that Congress did not intend to
\par permit "pyramiding" of penalties for CCE by impos-
\par ing consecutive terms of imprisonment or cumulative
\par fines for violations of CCE and Section 846 based
\par on the same agreement. 432 U.S. at 156 (opinion of
\par Blackmun, J.). See also Garrett, 471 U.S. at 794-795
\par (stating that Jeffers plurality "reasonably concluded"
\par that there would be little purpose in imposing
\par cumulative penalties). But that does not mean that
\par Congress intended to bar dual convictions and con-
\par current prison sentences for violation of the CCE and
\par drug conspiracy statutes, so long as the total prison
\par term and fine does not exceed that which would have
\par been imposed for the CCE violation alone.
\par 4. The decision in Ball v. United States, 470 U.S.
\par 856 (1985), on which petitioner places his primary
\par reliance (see Pet. Br. 12-19), does not require a
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 18
\par 
\par contrary conclusion. In Ball, the defendant, who had
\par previously been convicted of a felony, was charged
\par with receiving a firearm as a convicted felon, in
\par violation of 18 U.S.C. 922(h)(1) (1982), and for pos-
\par sessing that same firearm as a convicted felon, in
\par violation of 18 U.S.C. App. 1202(a)(1) (1982). The trial
\par court imposed consecutive sentences for the two
\par convictions, and the court of appeals accepted the
\par government's concession that such consecutive sen-
\par tences were improper. The court of appeals held that
\par Congress "did not authorize pyramiding penalties,"
\par 470 U.S. at 858 (quoting United States v. Ball, 734
\par F.2d 965, 966 (4th Cir. 1984)), and ordered that the
\par sentences be modified to run concurrently.
\par This Court held that it was permissible to indict
\par and try a defendant on both counts, even when "a
\par single act is relied upon to establish [the defendant's]
\par unlawful receipt and his unlawful possession of the
\par same firearm." 470 U.S. at 859. But, the Court held,
\par "[a]ll guides to legislative intent * * * show that
\par Congress intended a felon in [the defendant's] position.
\par to be convicted and punished for only one of the two
\par offenses if the possession of the firearm is incidental
\par to receiving it." Id. at 861. Because Congress in-
\par tended only one conviction and, a fortiori, only one
\par punishment to be imposed, "[t]he remedy of order-
\par ing one of the sentences to be served concurrently
\par with the other cannot be squared with Congress'
\par intention." Id. at 864. Accordingly, the Court re-
\par manded for the district court to vacate one of the
\par convictions. Id. at 865.
\par Unlike in Ball, "[a]ll guides to legislative intent"
\par do not suggest that Congress wanted to preclude dual
\par convictions and concurrent sentences in this case.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 19
\par 
\par The structural relationship, purposes, and history of
\par the offenses at issue in Ball-receiving and posses-
\par sing a gun-differ significantly from the offenses at
\par issue in this ease. In addition, the practical conse-
\par quences of permitting dual convictions and concur-
\par rent sentences in Ball differ substantially from the
\par consequences of doing so in the context of this case.
\par a. Initially, the overlap between the offenses of
\par illegally receiving and possessing a gun as a
\par convicted felon is virtually complete. All cases of
\par illegal receipt of a gun are also cases of illegal
\par possession. Ball, 470 U.S. at 862. And virtually all
\par cases of illegal possession are also cases of illegal
\par receipt; the only exception would appear to be the
\par extraordinary cases in which the defendant manu-
\par factured the gun himself. Id. at 862 n.9. Thus,
\par Congress would reasonably have expected that
\par convicted felons who possess guns will always-or
\par virtually always-be guilty of both offenses, and there
\par is no- reason" to think that Congress would have
\par intended more than one conviction and sentence to be
\par entered for that form of violation.
\par The same cannot be said for CCE and a Section .846
\par drug conspiracy; many drug conspiracy eases will not
\par involve commission of a CCE offense by anyone.
\par Moreover, even where some of the members of a
\par Section 846 drug conspiracy also commit the CCE
\par offense, others-who did not "occup[y] a position of
\par organizer, a supervisory position, or any other
\par position of management," 21 U.S.C. 848(c)(2)(A), or
\par who did not "obtain[] substantial income or re-
\par sources" from the venture, 21 U.S.C. 848(c)(2)(B)-
\par could not be convicted of the CCE offense.  The
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 20
\par 
\par overlap between the two statutes is much less than in
\par Ball. 
\par b. The history of the receipt and possession
\par statutes also demonstrates that Congress intended
\par the two as alternatives. As the Court noted in Ball,
\par the receipt statute was "part of a carefully con-
\par structed package of gun control legislation, which had
\par been in existence for many years." 470 U.S. at 862
\par (internal quotation marks omitted). By contrast, the
\par possession statute was a "last-minute Senate amend-
\par ment" to the statute that was "hastily passed, with
\par little discussion, no hearings, and no report." Id. at
\par 863. It was "enacted as supplementary legislation,"
\par and was intended to "fill[] the gaps in and expand[] the
\par coverage of" the receipt statute. Ibid. Based on that
\par history, the Court in Ball was "persuaded that Con-
\par gress had no intention of creating duplicative punish-
\par ment for one limited class of persons falling within
\par the overlap between the two [statutes]." Id. at 864.
\par No such inference can be drawn from the relation-
\par ship between the CCE offense and a Section 846 drug
\par conspiracy. There is no reason to believe that either
\par statute was intended to fill gaps in coverage created
\par by the other, nor is there any basis for inferring that
\par Congress intended one as an alternative to the other.
\par Rather, both statutes were intended independently to
\par define violations of the narcotics laws.
\par c. In addition, unlike in Ball, practical concerns
\par suggest that Congress would not have intended to
\par prohibit separate convictions and concurrent senten-
\par ces for a CCE and drug conspiracy based on the same
\par agreement. One of the reasons for entering dual
\par convictions and concurrent sentences in a case like
\par this is that it is possible that the defendant could,
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 21
\par 
\par either on direct review or years later on collateral
\par attack, obtain reversal of the CCE conviction. Given
\par the hybrid nature of the CCE offense, a reversal could
\par stem from trial error or insufficiency of proof that
\par relates only to the elements that clearly distinguish a
\par CCE from a simple conspiracy: the existence of the"
\par "continuing series of violations"; the requirement
\par that the defendant act in concert with "five or more
\par persons"; the need to show that the defendant played a
\par supervisory role; or the requirement that the defen-
\par dant have obtained "substantial income or resources"
\par from his violations. Such a reversal would provide no
\par basis for upsetting the drug conspiracy conviction: -"
\par Congress would no doubt have realized that a separate
\par conviction and concurrent sentence for the drug
\par conspiracy offense would be the simplest and mast
\par effective way to ensure that the defendant who ob-
\par tains reversal of his CCE conviction on such a ground
\par would still be appropriately punished for the drug
\par conspiracy that he committed. See United States v.
\par Bond, 847 F.2d 1233,1239 (7th Cir. 1988).
\par Those practical concerns have no force in the Ball
\par situation. Because the elements of the offenses of
\par illegal receipt and illegal possession of a gun are
\par virtually coextensive, a defendant could rarely if ever
\par obtain a reversal of his conviction on one of the two
\par offenses without also demonstrating that he is
\par entitled to a reversal on the other. Congress there-
\par fore might have intended, as Ball held it did, that
\par there be only one conviction for that same conduct,
\par without creating any realistic risk that a defendant
\par might someday evade just punishment for his con-
\par duct as a result of entering only a single count
\par of conviction. Unlike in this case, Congress's intent
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 22
\par 
\par to preclude separate convictions and concurrent sen-
\par tences in that situation in Ball may reasonably be
\par inferred.
\par d. Finally, the threat of adverse consequences for
\par the defendant is much less here than in Ball. The
\par Court explained in Ball that there were two adverse
\par consequences of the separate conviction and con-
\par current sentence. First, "the presence of two con-
\par victions on the record may * * * result in an
\par increased sentence under a recidivist statute for
\par a future offense." 470 U.S. at 865. 11. Second, "the
\par second conviction may be used to impeach the de-
\par fendant's credibility and certainly carries the soci-
\par etal stigma accompanying any criminal conviction."
\par Ibid. Neither of those concerns generally exists in
\par the case of dual CCE/Section 846 drug conspiracy
\par convictions.
\par With respect to sentencing under recidivist pro-
\par visions, the federal Sentencing Guidelines-which
\par came into effect after this Court's decision in Ball-
\par would not produce an enhanced sentence in a sub-
\par sequent sentencing merely because of the entry of
\par dual CCE/drug conspiracy convictions based on the
\par same agreement. The Guidelines use the number
\par and characteristics of prior sentences-not the raw
\par number of convictions-to calculate the defendant's
\par criminal history category. See Guidelines 4A1.1.
\par 
\par ___________________(footnotes)
\par                         
\par 11 The Court, in Ball also noted that the presence of two
\par convictions "may delay the defendant's eligibility for parole. "
\par 470 U.S. at 865. Since parole has now been abolished in the
\par federal system, see Sentencing Reform Act of 1984, Pub. L. No.
\par 98-473, Tit. II, Ch. II, 212, 218, 98 Stat. 1987, 2027, that
\par no longer is an adverse consequence of the entry of two
\par convictions.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 23
\par 
\par But "[p]rior sentences imposed in related cases are to
\par be treated as one sentence for purposes of" the
\par calculation. Guidelines  4A1.2(a)(2). A CCE and a
\par Section 846 drug conspiracy sentence based on the
\par same agreement and tried at the same time would
\par be considered "related" under the Guidelines. See
\par Guidelines 4A1.2, Application Note 3. The Guide-
\par lines instruct sentencing courts to "[u]se the longest
\par sentence of imprisonment if concurrent sentences
\par were imposed." Guidelines 34A1.2(a)(2). Thus, under
\par the Guidelines regime, a defendant in petitioner's
\par position would not suffer any adverse consequences in
\par a future sentencing proceeding from having received
\par dual conviction and concurrent sentences. 12.
\par With respect to the "societal stigma" or impeach-
\par ment value attached to the second conviction, it is
\par                        
\par ___________________(footnotes)
\par 
\par 12 Congress has required a mandatory life sentence for
\par certain drug distribution violations involving particularly large
\par quantities of controlled substances if the defendant commits the
\par offense "after two or more prior convictions for a felony drug
\par offense have become final." 21 U.S.C. 841(b)(1)(A). See 21
\par U.S.C. 802(43) (to be codified in 1994 edition) (defining "felony
\par drug offense"). The courts of appeals would not count the
\par CCE and drug conspiracy convictions in a case like this as
\par separate convictions for purposes of that provision, especially if
\par the CCE and drug conspiracy offenses are viewed as greater
\par and lesser included offenses.  See, e.g., United States v.
\par Liquori, 5 F.3d 435, 437 (9th Cir. 1993) (citing cases), cert.
\par denied, 114 S. Ct. 738 (1994).
\par It is also possible that a defendant convicted of CCE and a
\par Section 846 drug conspiracy based on the same agreement
\par could in some future case face a state sentencing court, where
\par the federal Guidelines would be of no relevance.  But it is
\par unlikely that Congress fashioned its penalties for federal felony
\par drug violations in light of possible collateral consequences un-
\par der state law.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 24
\par 
\par important to recognize that the CCE offense is one of
\par the most serious criminal offenses in federal law, It
\par is therefore doubtful that a defendant, once convicted
\par of CCE, would suffer any incremental stigma as a
\par result of the fact that he was also convicted of a
\par Section 846 drug conspiracy based on the same
\par agreement. Indeed, in light of the fact that there
\par would be a jury verdict of guilty on the Section 846
\par charge that would be a matter of public record, the
\par defendant would be extraordinarily unlikely to suffer
\par any additional stigma from the additional conviction.
\par Even if there were some increment of societal stigma
\par or potential for impeachment that would attach to the
\par drug conspiracy conviction, however, there would be
\par no reason to believe that Congress, having created
\par the CCE offense with its extraordinary penalties,
\par would have been concerned that some CCE defendants
\par would suffer such a relatively minor adverse con-
\par sequence. Therefore, it would provide no basis for
\par inferring that Congress would have wanted to pre-
\par clude dual convictions in this situation.
\par 
\par II. IF THE COURT CONCLUDES THAT THE ENTRY
\par OF SEPARATE CONVICTIONS AND CONCUR-
\par RENT SENTENCES CONTRAVENES CONGRES-
\par SIONAL INTENT, THE APPROPRIATE COURSE
\par WOULD BE TO REQUIRE ENTRY OF A SINGLE,
\par MERGED CONVICTION AND SENTENCE ON THE
\par TWO COUNTS
\par 
\par Those courts of appeals that do not permit the
\par entry of a separate conviction or concurrent sentence
\par for CCE and a Section 846 drug conspiracy based on
\par the same agreement have adopted three different
\par approaches to the treatment of the dual jury verdicts
\par of guilty in such a case. In our view, the approach
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 25
\par 
\par developed by the Second Circuit of combining or
\par merging the two counts into a single conviction best
\par accommodates the interests of the government in
\par ensuring that the defendant receive just punish-
\par ment for the crimes he has committed and the inter-
\par ests of the defendant in avoiding adverse collateral
\par consequences.
\par 1.  The Second Circuit has held that the ap-
\par propriate course when the jury finds. the defendant
\par guilty of CCE and drug conspiracy based on the same
\par agreement is to "combine" the two convictions in a
\par single count, for which the punishment may not
\par exceed that applicable to the greater offense. See,
\par e.g., United States v. Aiello, 771 F.2d 621, 632-635 (2d
\par Cir. 1985). Under that approach, "the conviction] for
\par the lesser offense[] would cease to exist unless the
\par conviction for the greater offense should be reversed,
\par in which event the defendant could be punished for the
\par lesser offense]." Id. at 632. At that time, "[a]ny time
\par already served would be counted as credit against the
\par newly imposed sentence." Id. at 634. Presumably,
\par any fine already imposed would also be credited
\par against any newly imposed fine. As we understand it,
\par the judgment in such a ease would indicate that a
\par single conviction is being entered for two offenses.
\par The reason for the Second Circuit's approach is
\par that, if the defendant succeeds in having his convic-
\par tion for the greater offense overturned on appeal or on
\par collateral attack, the defendant should not have the
\par windfall of avoiding punishment altogether for the
\par second offense. See Aiello, 771 F.2d at 633-634. See
\par also United States v. Lindsay, 985 F.2d 666, 670-671
\par (2d Cir.), cert. denied, 114 S. Ct. 103 (1993); United
\par States v. Benevento, 836 F.2d 60, 73 (2d Cir. 1987),
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 26
\par 
\par cert. denied, 486 U.S. 1043 (1988). Cf. Tinder v.
\par United States, 345 U.S. 565,569-570 (1953) (remanding
\par case for entry of conviction and sentence on lesser
\par included misdemeanor after felony conviction was
\par overturned). The defendant, however, suffers no
\par adverse consequences from the entry of the single,
\par merged conviction.  In any future recidivist pro-
\par ceeding, there would be only one conviction on the
\par defendant's record, covering both the CCE and
\par Section 846 drug conspiracy offenses. Nor Would
\par defendant suffer any other adverse consequences;
\par there is no reason to believe that the "societal
\par stigma" to which such a defendant would be subject
\par would be any greater than that to which he would
\par have been subjected had he been convicted only of a
\par CCE violation. Cf. Ball, 470 U.S. at 865.
\par In our view, if dual convictions and concurrent
\par sentences are held improper, the Second Circuit's
\par approach best accommodates the interests of the
\par government and is consistent with Congress's proba-
\par ble intent. In addition, it ensures that the defendant
\par will receive the punishment that he deserves, while
\par protecting the defendant against any possible adverse
\par consequences.
\par 2. Based on concerns similar to those underlying
\par the Second Circuit's "combination" approach, the
\par Ninth Circuit has taken a somewhat different course.
\par Although the Ninth Circuit has not specifically ad-
\par dressed the issue in a case where a defendant was
\par convicted of CCE and a Section 846 drug conspiracy,
\par that court has adopted a general approach for cases in
\par which it is permissible to charge and try a defendant
\par for two offenses, but to enter only one conviction.
\par The Ninth Circuit has held that the appropriate
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 27
\par 
\par course of action in such a case is to "stay[] both the
\par sentence and entry of judgment of conviction on all
\par but one count." United States v. Palafox, 764 F.2d
\par 558, 564 (9th Cir. 1985) (en banc). 13. If the conviction
\par that is entered is ultimately reversed on appeal or on
\par collateral attack, the district court could then enter a
\par judgment of conviction and sentence on the remaining
\par count. That would ensure "that the defendant is
\par punished, but punished only once," and "[i]t avoids
\par both the punitive collateral effects of multiple convic-
\par 
\par ___________________(footnotes)
\par                                      
\par 13 The Ninth circuit's procedure mirrors that formerly
\par followed by some courts under the concurrent sentence doc-
\par trine. After affirming one of two convictions on which sent-
\par ence ran concurrently, those courts would vacate the judgment
\par with respect to the other, but note that the sentence and
\par conviction could be reimposed at a later date in the event that a
\par defect were discovered in the conviction that was affirmed.
\par See, e.g., United States v. De Bright, 730 F.2d 1255 (9th Cir.
\par 1984) (en banc); United States v. Butera, 677 F.2d 1376, 1386
\par (11th Cir. 1982), cert. denied, 459 U.S. 1108 (1983); United
\par States v. Hooper, 432 F.2d 604, 606 n.8 (D.C. Cir. 1970). But
\par see, e.g., United States v. Vargas, 615 F.2d 952, 960 (2d Cir.
\par 1980) (applying the concurrent sentence doctrine to leave
\par undisturbed the unreviewed district court judgment); United
\par States v. Lampley, 573 F.2d 783, 788 (3d Cir. 1978) (same);
\par United States v. Nelson, 733 F.2d 364, 371 n.17 (5th Cir.)
\par (same), cert. denied, 469 U.S. 937 (1984); United States v.
\par Peters, 617 F.2d 503, 506 (7th Cir. 1980); United States v.
\par Wilson, 671 F.2d 1138, 1139 n.2 (8th Cir.) (same), cert. denied,
\par 456 U.S. 994 (1982). Under 18 U.S.C. 3013, a special assessment
\par must be imposed with respect to each offense on which the
\par defendant is convicted. Since each offense now carries with it
\par a cumulative special assessment, the concurrent sentence doc-
\par trine now has virtually no application in the federal system.
\par See Ray v. United States, 481" U.S. 736 (1987) (per curiam).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 23
\par 
\par tions as well as the direct effects of multiple
\par sentences." Ibid. 14.
\par In our view, although the Ninth Circuit approach
\par represents a partial accommodation of the important
\par interests at stake in cases of this sort, the Second
\par Circuit's approach is preferable. Initially, if the CCE
\par conviction were ever overturned, it is possible that
\par speedy trial or related concerns could be thought to
\par threaten the ability of the government to obtain a new
\par judgment on the Section 846 jury verdict that has
\par been held in abeyance. That could add needless com-
\par plexity to the process of ensuring that the defendant
\par receives the punishment Congress intended for his
\par participation in the Section 846 drug conspiracy.
\par In any event, the Ninth Circuit's approach could
\par interfere with the strong policy against piecemeal
\par appeals in criminal cases. In an initial appeal in such
\par a case, the defendant could not raise-and the court
\par could not decide-any issue that concerns only the
\par Section 846 drug conspiracy conviction, for the only
\par issue before the appellate court would be whether the
\par 
\par ___________________(footnotes)
\par 
\par 14 The Ninth Circuit has employed the Palafox approach in
\par subsequent cases involving dual convictions where cumulative
\par punishments could not be imposed, although none of those cases
\par specifically involved convictions for drug conspiracy and CCE.
\par See, e.g., United States v. Compton, 5 F.3d 358, 360 (9th Cir.
\par 1993); United States v. Sanchez-Lopez, 879 F.2d 541, 549-550
\par (9th Cir. 1989); United States v. Sanchez-Vargas, 878 F.2d
\par 1163, 1172 (9th Cir. 1989); United States v. Andersson, 813
\par F.2d 1450, 1460-1462 (9th Cir. 1987). Compare United States
\par v. Hernandez-Escarsega, 886 F.2d 1560, 1582 (9th Cir. 1989)
\par (holding that conviction on drug conspiracy offense must be
\par vacated in light of CCE conviction, but not stating whether
\par drug conspiracy conviction could be revived if CCE conviction
\par were ever overturned), cert. denied, 497 U.S. 1003 (1990).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par          
\par 29
\par 
\par CCE conviction and sentence is valid. Indeed, there is
\par some possibility that a judgment that purports to stay
\par disposition of the drug conspiracy count would be
\par insufficiently final to support an appeal. See United
\par States v. Luciano-Mosquera, Nos. 92-1923 et al., 1995
\par WL 500601, at *3 n.2 (1st Cir. Aug. 28, 1995) ("[A]
\par criminal judgment involving multiple counts is not
\par final and appealable unless the record discloses the
\par precise disposition (e.g., the sentence) for each
\par count."); United States v. Wilson, 440 F.2d 1103, 1104
\par (5th Cir.), cert. denied, 404 U.S. 882 (1971) & 405 U.S.           
\par 1016 (1972). Even if such a partial disposition of the       
\par case could support an appeal, legal issues concerning
\par the validity of the Section 846 drug conspiracy
\par conviction could lie dormant for years, until and
\par unless it is necessary to enter judgment on that
\par conviction. Only at that time could the issues be
\par brought before the court of appeals.
\par Under the Second Circuit's approach, such piece-
\par meal appeals would be avoided; the defendant could
\par (and should) challenge any defects regarding both the           
\par CCE and the drug conspiracy charges on his initial
\par appeal of the merged conviction. Indeed, the validity
\par of both charges would be squarely before the court at
\par that time, since a reversal on the ground of a defect
\par in the CCE count would lead only to a remand for
\par resentencing, while a reversal on the ground of one or
\par more defects affecting both the CCE and drug con-
\par spiracy counts would lead to a remand for vacatur of
\par the conviction. See Aiello, 771 F.2d at 634 n.8.
\par 3. Several courts have held simply that a defendant
\par may be convicted of only one offense (the CCE or
\par the drug conspiracy) and that a judgment imposing
\par two convictions must be set aside and remanded for
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 30
\par 
\par the district court to vacate one of the convictions-
\par presumably, the lesser one. 15. Those courts have not
\par made clear whether a conviction on the Section 846
\par drug conspiracy count could later be entered if the
\par CCE conviction were ever overturned on collateral
\par attack. If those courts would permit such a convic-
\par tion to be entered, their approach is essentially iden-
\par tical with that adopted by the Ninth Circuit. If they
\par would not permit such a conviction to be entered,
\par however, their approach is mistaken. It would permit
\par a defendant who engages in a drug conspiracy in
\par violation of Section 846 and who is properly tried and
\par found guilty by a jury for that violation to escape
\par without conviction or punishment, so long as he was
\par also convicted of a CCE offense at the same time and
\par that CCE conviction is later found to be defective.
\par That is not a plausible understanding of Congress's
\par intent regarding punishment for defendants who
\par commit both Section 846 drug conspiracy and CCE
\par violations. Nor is it necessary to achieve any other
\par legitimate goal. Accordingly, it should be rejected.
\par 
\par ___________________(footnotes)
\par 
\par 15 See United States v. Cloutier, 966 F.2d 24, 30-31 (lst Cir.
\par 1992); United States v. Butler, 885 F.2d 195, 201-202 (4th Cir.
\par 1989); United States v. Chambers, 944 F.2d at 1268-1269;
\par United States v. Rivera, 900 F.2d 1462, 1478 (10th Cir. 1990)
\par (en banc); United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir.
\par 1986), cert. denied, 481 U.S. 1006 & 482 U.S. 930 (1987). The
\par Eighth Circuit has adopted an approach whereby the district
\par court may enter two convictions, which the court of appeals
\par reviews on appeal. If both are upheld, however, the court of
\par appeals remands the case to the district court for vacatur of
\par one of the convictions. United States v. Jelinek, 57 F.3d 655
\par (8th Cir. 1995), petition for cert. pending, No. 95-5343.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 31
\par         
\par CONCLUSION
\par 
\par The judgment of the court of appeals should be
\par affirmed.
\par 
\par Respectfully submitted.
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par JOHN C. KEENEY
\par Acting Assistant Attorney General
\par 
\par MICHAEL R. DREEBEN
\par Deputy Solicitor General
\par 
\par JAMES A. FELDMAN
\par Assistant to the Solicitor General
\par 
\par RICHARD A. FRIEDMAN
\par Attorney
\par 
\par OCTOBER 1995                 
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par APPENDIX
\par 
\par 1. 21 U.S.C. 846 provides as follows:
\par 
\par 846. Attempt and conspiracy
\par 
\par Any person who attempts or conspires to
\par commit any offense defined in this subchapter
\par shall be subject to the same penalties as those
\par prescribed for the offense, the commission of
\par which was the object of the attempt or conspiracy.
\par 
\par 2. 21 U.S.C. 848 provides in relevant part as
\par follows:
\par 
\par 848. Continuing criminal enterprise
\par 
\par (a) Penalties; forfeitures
\par 
\par Any person who engages in a continuing
\par criminal enterprise shall be sentenced to a term
\par of imprisonment which may not be less than 20
\par years and which may be up to life imprisonment,
\par to a fine not to exceed the greater of that auth-
\par orized in accordance with the provisions of title
\par 18, or $2,000,000 if the defendant is an individual
\par or $5,000,000 if the defendant is other than an
\par individual, and to the forfeiture prescribed in
\par section 853 of this title; except that if any person
\par engages in such activity after one or more prior
\par convictions of him under this section have become
\par final, he shall be sentenced to a term of im-                
\par prisonment which may not be less than 30 years
\par and which may be up to life imprisonment, to a fine
\par not to exceed the greater of twice the amount
\par 
\par (1a)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par        
\par 2a
\par 
\par authorized in accordance with the provisions of
\par title 18 or $4,000,000 if the defendant is an
\par individual or $10,000,000 if the defendant is other
\par than an individual, and to the forfeiture prescribed
\par in section 853 of this title.
\par 
\par (b) Life imprisonment for engaging in continuing
\par criminal enterprise
\par 
\par Any person who engages in a continuing
\par criminal enterprise shall be imprisoned for life
\par and fined in accordance with subsection (a) of
\par this section, if-
\par 
\par (1) such person is the principal adminis-
\par trator, organizer, or leader of the enterprise
\par or is one of several such principal adminis-
\par trators, organizers, or leaders; and
\par 
\par (2)(A) the violation referred to in sub-
\par section (d)(1) of this section involved at least
\par 300 times the quantity of a substance de-
\par scribed in subsection 841(b)(1)(B) of this title,
\par or
\par 
\par (B) the enterprise, or any other en-
\par terprise in which the defendant was the
\par principal or one of several principal adminis-
\par trators, organizers, or leaders, received $10
\par million dollars in gross receipts during any
\par twelve-month period of its existence for the
\par manufacture, importation, or distribution of a
\par substance described in section 841(b)(1)(B) of
\par this title.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3a
\par 
\par (c) "Continuing criminal enterprise" defined
\par 
\par For purposes of subsection (a) of this section, a
\par person is engaged in a continuing criminal enter-
\par prise if-
\par 
\par (1) he violates any provision of this sub-
\par chapter or subchapter II of this chapter the
\par punishment for which is a felony, and
\par 
\par (2) such violation is a part of a continuing
\par series of violations of this subchapter or sub-
\par chapter II of this chapter-
\par 
\par (A) which are undertaken by such
\par person in concert with five or more other
\par persons with respect to whom such person
\par occupies a position of organizer, a super-
\par visory position, or any other position of
\par management, and
\par 
\par (B) from which such person obtains
\par substantial income or resources.
\par 
\par (d) Suspension of sentence and probation pro-
\par hibited
\par 
\par In the case of any sentence imposed under this
\par section, imposition or execution of such sentence
\par shall not be suspended, probation shall not be
\par granted, and the Act of July 15, 1932 (D.C. Code,
\par sees. 24-203-24-207), shall not apply.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4a
\par 
\par (e) Death penalty
\par 
\par (1) In addition to the other penalties set forth
\par in this section-
\par 
\par (A) any person engaging in or working in
\par furtherance of a continuing criminal enter-
\par prise, or any person engaging in an offense
\par punishable under section 841(b)(1)(A) of this
\par title or section 960(b)(1) of this title who
\par intentionally kills or counsels, commands,
\par induces, procures, or causes the intentional
\par killing of an individual and such killing
\par results, shall be sentenced to any term of
\par imprisonment, which shall not be less than 20
\par years, and which may be up to life imprison-
\par ment, or maybe sentenced to death; and
\par 
\par (B) any person, during the commission of,
\par in furtherance of, or while attempting to
\par avoid apprehension, prosecution or service
\par of a prison sentence for, a felony violation
\par of this subchapter or subchapter II of this
\par chapter who intentionally kills or counsels,
\par commands, induces, procures, or causes the
\par intentional killing of any Federal, State, or
\par local law enforcement officer engaged in, or on
\par account of, the performance of such officer's
\par official duties and such killing results, shall
\par be sentenced to any term of imprisonment,
\par which shall not be less than 20 years, and
\par which may be up to life imprisonment, or may
\par be sentenced to death.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 5a
\par 
\par (2) As used in paragraph [(1)(B)], the term "law
\par enforcement officer" means a public servant
\par authorized bylaw or by a Government agency or
\par Congress to conduct or engage in the prevention,
\par investigation, prosecution or adjudication of an
\par offense, and includes those engaged in correc-
\par tions, probation, or parole functions.
\par 
\par 
\par 
\par 
\par 
\par }