WPCR 2BBcR Z3#|o "m^36Gff%==\o3=33ffffffffff33oooQzKfzztzp=o=o\%ffQi\=bp:6m:p\ifQUGpbbbX=o=o=3============i:fffffQ\\\\K:K:K:K:p\\\\ppppbfi\\b\zifffQQQQi\\\\bbbbbbppK:K:K:K:fmz:z:z:z:z:pppp\\QQQtUtUtUtUzGzGzGppppppbpXpXpXiz:pQtUzGbbi\pNo3o\6QNNfff=7f=f=%GGf//\\pp%G=ooee3o<HYYY66^E@@@@(JEEE66;,1N11@@@A9<16%7,7(7,A6C/A1>1P7A/:,A1E12156(7(>4E/A1H>E>9(6144>986@9999999999999999999(((((((666666666666666666661111111444444444444>>>>>>>>>>>>>>>>>>>>A7AA>E>1"m^018``(AASe.8..``````````..eeeS}xJlxoxxxoAeAeS(fl]o`Afr>;o;rfolWSGrfffZAeAe8.888888888888f>fffff]````J>J>J>J>rffffrrrrxffoffxffofff]]]]o````ffffffrrJ>J>J>J>lox;x;x;x;x;rrrrffWWWoSoSoSoSxGxGxGrrrrrrxfoZoZoZox;rWoSxGxfxfofrNe.}S1SSS```==`9}}`9(PPS88SSrr(P9ee\\w.e77\\\wwweeeCe.wR)EreewwwwIeenR\\\wwwxio\eEfRfIfRxe|W87y\r\rxWlRx\\]\ceIfIs`Wx\rriIe77\``rigewiiiiiiiiiiiiiiiiiiiIIIIIIIeeeeeeeeeeeeeeeeeeee777777777777\\\\\\\````````````rrrrrrrrrrrrrrrrrrrrxfx8xs8s\"m^!+==\Z%%7C%==========CCC1QOOOVOIV\-=VIhZVIVOEIZOlMMC%C%C7==1?7%;C#!A#bC7?=13+C;V;;5%C%C%%%n%%%%%%%%%%?#O=O=O=O=O=nXO1O7O7O7O7-#-#-#-#ZCV7V7V7V7ZCZCZCZCM;O=V?V7V7M;V7I?O=O=O=O1O1O1O1V?O7O7O7O7V;V;V;V;V;V;\C\C-#-#-#-#=VAI#I#I#I#I#ZCZCZCZCV7V7n\O1O1O1E3E3E3E3I+I+I+ZCZCZCZCZCZClVM;C5C5C5V?I#ZCO1E3I+M;M;V?V7ZCNCC7!1//===%!\\=%QQ=\%++=n77nCCn+n%CC<gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS"X^HJS<aa}FSFFFF}oaa}<a]XX}kaaSFSS*SSSSSSSSSS]o]o]o]o]o]o]o]o]XXXXX}}}}kkkX}kNF}J}}}\\VV<xx}SS}}<xVF*RRdE|>gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS"m^*,:SS}z22K[*2**SSSSSSSSSS**[[[Collluldu}=Sudzudul_dzljj\2[2[KSSCVK2Q\/,Y/\KVSCE:\QuQQH2[2[2*222222222222V/lSlSlSlSlSwlClKlKlKlK=/=/=/=/z\uKuKuKuKz\z\z\z\jQlSuVuKuKjQuKdVlSlSlSlClClClCuVlKlKlKlKuQuQuQuQuQuQ}\}\=/=/=/=/SuYd/d/d/d/d/z\z\z\z\uKuK}lClClC_E_E_E_Ed:d:d:z\z\z\z\z\z\ujQ\H\H\HuVd/z\lC_Ed:jQjQuVuKz\N[*[K,C@@SSS2-}}S2ooS}2::S''KK\\:2[[RRk*[11RRRkskk[ZZ<[){kJ%>gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR27}#!*c0 c(4"X^?Sf}}SSS}?S?F}}}}}}}}}}FFoSaSFSu}So}o}oS}}FF}F}}}}SaF}}}}ox2xS?SS*SSSSSSSSSS}FooooooooooSFSFSFSF}}}}}}}}}}o}}}}}}ooooooo}oooo}}}}}}}}SFSFSFSFa}FFFFF}}}}}}SSSaaaaFFF}}}}}}}ooo}F}SaF}}}}}NX?q}So}}}}}EN}K}K-oo}SS}}SoKF*RRdE|>gn|g|n|SR}{nnnRRnnnnnnnRRRRRRRRRRRRSS"X^?S}}SSS}?S?F}}}}}}}}}}SS}a}SFS}S}ooS}FSF}oaS}}}oc7cS?SS*SSSSSSSSSSF}}}}}oooooaFaFaFaF}}}}}}}}}}}}}oooooooo}}}}}}aFaFaFaF}FFFFF}}oooaaaaSSS}oooFoaS}}}NX?}S}}}}}}KS}K}KF}}}SS}}S}KF*RRdE|>gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS"m^ #-AAa_'':G ' AAAAAAAAAA GGG4VTTT[TN[a/A[Nn_[N[TJN_TrRRG'G'G:AA4C:'?G%#E%hG:CA46-G?[??8'G'G' ''u''''''''''C%TATATATATAu]T4T:T:T:T:/%/%/%/%_G[:[:[:[:_G_G_G_GR?TA[C[:[:R?[:NCTATATAT4T4T4T4[CT:T:T:T:[?[?[?[?[?[?aGaG/%/%/%/%A[EN%N%N%N%N%_G_G_G_G[:[:uaT4T4T4J6J6J6J6N-N-N-_G_G_G_G_G_Gr[R?G8G8G8[CN%_GT4J6N-R?R?[C[:_GNG G:#422AAA'#aaA'VVAa'--Au::uGGu-u'GG@@S G&&@@@SZSSGssFFz/G `S:0P]sssFFzZSSSS3`ZZZFFM:@e@@SSSTJN@F0G:G3G:TFV='&T@P@hGT=K:T@Z@A@EF3G3QCY=T@]PZPJ3F&&@CCPJHFSJJJJJJJJJJJJJJJJJJJ3333333FFFFFFFFFFFFFFFFFFFF&&&&&&&&&&&&@@@@@@@CCCCCCCCCCCCPPPPPPPPPPPPPPPPPPPPTGT'TQZ'Q@"m^*2gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR2xB c7 c ; c>A"m^3=Iff%==\o3=3offffffffff33oooQzKpzzz~~z=o=o\%ifQpQ=bp=:f=p\ifQQAp_\\U=o=o=3============f=iiiiiQQQQQK=K=K=K=p\\\\pppp~\ip\\~\\ziiiiQQQQpQQQQbbbbbbppK=K=K=K=pfz=z=z=z=z=pppp\\QQQzQzQzQzQ~A~A~Apppppp~\zUzUzUpz=pQzQ~A~\~\p\pNo3w\=QNNfffMDf=f=3GG\==\\pp%G=ooee3o<>RRR1,zzR1llRz199R&&IIZZ91YYQQi)Y00QQQiqiiYXX;Y(yiH$<euXXqiiii@yqqqXXaHQQQiiij]bQX P['CPd:SHvX pTCd'l80lX pTCDS?3s\  PCPDS??皝4  p(AC&u![2*d[ P['CP &[G' ԦGG P['C^Pu![2*P[e xzCX)o=3PRoe xzC&X&r!Y1)LY P['CP )o=3no P['C&P &F66 P['CP&UC%D4C P['CJPSR{nnnROpin Init #  ( (     П I. A. 1. a.(1)(a) i) a) I A 1 a (1)(a) i) a)@@Final Op ##  ( ( ( (  X` hp x (#%'0*,.8135@8: 684, 691!692 (1980); Ball v. United States, 470 U.S. 856, 861 (1985).  For over half a century we have determined whether a defendant has been punished twice for the same  J offense by applying the rule set forth in Blockburger v.  Jv United States, 284 U.S. 299, 304 (1932). If the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other  J does not. Ibid. In subsequent applications of the test, we have often concluded that two different statutes define the same offense, typically because one is a  J6 lesser included offense of the other.6 uB ԍ FTN    XgEpXFr  ddf < See, e.g., Ball v. United States, 470 U.S. 856, 861!864 (1985) (concluding that multiple prosecutions were barred because statutes directed at receipt and possession of a firearm amounted to the  uB  same offense, in that proof of receipt  necessarily included proof"##  uB of possession); Whalen v. United States, 445 U.S. 684, 691!695 (1980) (concluding that two punishments could not be imposed because rape and felony murder predicated on the rape were the  uB  same offense); Brown v. Ohio, 432 U.S. 161, 167!168 (1977) (in  uBl multiple proceedings context, applying Blockburger v. United States, 284 U.S. 299 (1932), to confirm statecourt conclusion that offense of joyriding was a lesser included offense of auto theft).6"  Ԍ In this case it is perfectly clear that the CCE offense requires proof of a number of elements that need not be  J established in a conspiracy case. uB ԍThe defendant must, for example, commit a series of substantive violations, be a leader of the criminal enterprise, and derive substantial income from it. The Government need not prove any of those elements to establish a conspiracy in violation of 846. Even the in concert element of the CCE offense is broader than any requirement in 846 because it requires at least five participants, while a conspiracy requires only two. The Blockburger test requires us to consider whether the converse is also true"whether the 846 conspiracy offense requires proof of any element that is not a part of the CCE offense. That question could be answered affirmatively only by assuming that while the 846 conspiracy requires proof of an actual agreement among the parties, the in concert element of the CCE offense might be satisfied by something less.  The Government advanced this precise argument in  J Jeffers v. United States, 432 U.S. 137 (1977),|J  uB ԍ FTN    XgEpXFr  ddf < In Jeffers, we considered whether the Government could prosecute the defendant under 848 even though he had previously been convicted of 846 conspiracy on the basis of the same agreements. The Government argued that the multiple prosecution was permissible because the crimes were not the same offense. The Government's position is premised on its contention that agreement is not an essential element of the 848 offense, despite the presence in 848(b)(2)(A) of the phrase `in concert with.' If five `innocent dupes' each separately acted `in concert with' the ringleader of the continuing criminal enterprise, the Government asserts, the statutory requirement would be satisfied. Brief for United States 23. 432  uBg U.S., at 147. The Government relied on Iannelli v. United States,g"## 420 U.S. 770 (1975), in which we construed 18 U.S.C. 1955 as not requiring proof of conspiracy. As Justice Blackmun pointed out, however, the language of 1955 was significantly different from 848 in that it omitted the words in concert and left open the possibility that the five persons `involved' in the gambling operation might not be acting together. 432 U.S., at 147!148.| but it "    J managed to persuade only one Justice. Id., at 158 (White, J., concurring). The position was rejected, to varying degrees, by the other eight. The four dissenters adopted, without comment, the proposition that conspir J` acy was a lesser included offense of CCE. See id., at 158, and 159, n.5. The remaining Justices joined Justice Blackmun's plurality opinion which, while declining to hold that conspiracy was a lesser included  J offense, J uBr ԍ FTN    XgEpXFr  ddf < The plurality did not need to hold that conspiracy was a lesser included offense because it found that even if it was, the petitioner waived whatever right he may have had to object to the second prosecution under 848 when he opposed the Government's motion,  uBN brought before the first trial, to consolidate the proceedings. Id., at 149!150, 153!154. nonetheless explained why the Government's argument was inconsistent with the statute's text, with the way the words in concert have been used in other statutes, and with the legislative history of this stat J ute."  K $  uB ԍ FTN  &  XgEpXFr  ddf < The language of 848 restricts the definition of the crime to a continuing series of violations undertaken by the accused `in concert  uB with five or more other persons.' !  Id., at 148. As a result, a conviction [under 848] would be impossible unless concerted activity were present.... Even if 848 were read to require individual agreements between the leader ... and each of the other five necessary participants, enough would be shown to prove a conspiracy.  uB Ibid.  Furthermore, [w]hen the phrase `in concert' has been used in other statutes, it has generally connoted cooperative action and agreement.... This suggests that Congress intended the same words to have the same meaning in 848.... Since the word `concert' commonly signifies agreement of two or more persons in a common plan or enterprise, a clearly articulated statement fromg "## Congress to the contrary would be necessary before that meaning  uBG should be abandoned. Id., at 149, n. 14 (citations omitted); see 3 Oxford English Dictionary 658 (2d ed. 1989) (defining concert as [a]greement of two or more persons or parties in a plan, design, or enterprise; union formed by such mutual agreement; esp[ecially] in  uB# phrase in concert); Webster's Third New International Dictionary 470 (1981) (defining concert as agreement in a design or plan: union formed by mutual communication of opinions and views:  uBH accordance in a scheme) FTN  e XFrXFr ff . Thus, [i]n the absence of any indication from the legislative history or elsewhere to the contrary, the far more likely explanation is that Congress intended the word `concert' to have its common meaning of agreement in a design or plan.  uB$ Jeffers, 432 U.S., at 148!149." Based on its understanding of the more likely   "    J interpretation of 848, the plurality assumed, arguendo, that 848 does require proof of an agreement among the persons involved in the continuing criminal enterprise. So construed, 846 is a lesser included offense of 848, because 848 requires proof of every fact necessary to show a violation under 846 as well as proof of  J several additional elements. Id., at 149!150.  J  In the years since Jeffers was decided, the Courts of Appeals have also consistently rejected the Government's interpretation of the in concert language of 848; they have concluded, without exception, that conspiracy is a  JH lesser included offense of CCE. H  uB ԍ FTN  &  XgEpXFr  ddf < See, e.g., RiveraMartinez, 931 F.2d, at 152 (CA1); Aiello, 771  uB F.2d, at 633 (CA2); Neal, 27 F.3d, at 1054 (CA5); United States v.  uBi Chambers, 944 F.2d 1253, 1268 (CA6 1991), cert. denied, 502 U.S.  uB  1112, sub nom. Lucas v. United States, 503 U.S. 989 (1992); Rut uB ledge, 40 F.3d, at 886 (CA7); Possick, 849 F.2d, at 341 (CA8);  uB Hernandez-Escarsega, 886 F.2d, at 1582 (CA9); Stallings, 810 F.2d,  uBE at 975 (CA10); United States v. Graziano, 710 F.2d 691, 699 (CA11 1983). We think it is appropriate now to resolve the point definitively: For the  J reasons set forth in Jeffers, and particularly because the plain meaning of the phrase in concert signifies mutual agreement in a common plan or enterprise, we hold that this element of the CCE offense requires proof of a  "   conspiracy that would also violate 846. Because 846 does not require proof of any fact that is not also a part of the CCE offense, a straightforward application of the  J Blockburger test leads to the conclusion that conspiracy as defined in 846 does not define a different offense from the CCE offense defined in 848. Furthermore, since the latter offense is the more serious of the two, and because only one of its elements is necessary to prove a 846 conspiracy, it is appropriate to characterize  J 846 as a lesser included offense of 848. '  uB ԍ FTN  &  XgEpXFr  ddf < Garrett v. United States, 471 U.S. 773, 794!795 (1985), is not to the contrary. There, we affirmed the defendant's prosecution for a CCE violation even though he had previously pleaded guilty to a  uB% predicate crime of importing marijuana. Id., at 794!795. That holding, however, merely adhered to our understanding that legislatures have traditionally perceived a qualitative difference between conspiracylike crimes and the substantive offenses upon which they  uB are predicated. See, e.g., United States v. Felix, 503 U.S. 378, 389!390 (1992) (allowing prosecution for conspiracy after petitioner  uBo was convicted of underlying substantive offense, and citing Garrett as a similar case). No such difference is present here. In contrast  uB to the crimes involved in Garrett, this case involves two conspiracy uB like offenses directed at largely identical conduct. Jeffers v. United  uBK States, 432 U.S. 137, 157 (1977); Garrett, 471 U.S., at 794 ( [T]he  uB plurality [in Jeffers] reasonably concluded that the dangers posed by a conspiracy and a CCE were similar and thus there would be little purpose in cumulating the penalties).  9H1 d dy,III؃  2  The Government contends that even if conspiracy is a lesser included offense of CCE, the resulting presumption against multiple punishments does not invalidate either of petitioner's convictions. The second conviction, the Government first argues, may not amount to a punishment at all.  We begin by noting that 18 U.S.C. 3013 requires a federal district court to impose a $50 special assessment for every conviction, and that such an assessment was "   imposed on both convictions in this case. As long as 3013 stands, a second conviction will amount to a  J second punishment. Cf. Ray v. United States, 481 U.S.  J 736, 737 (1987) (per curiam) (presence of $50 assessment precludes application of concurrent sentence doctrine). The Government urges us not to rely on the assessment, however, pointing out that petitioner did not challenge it below, and noting that the question presented presupposes fully concurrent sentences. Brief for United States 7, n.1.  If we ignore the assessment as the Government requests, the force of its argument would nonetheless be  J limited by our decision in Ball v. United States, 470  J U.S. 856 (1985). There, we concluded   that Congress did not intend to allow punishment for both illegally  J  receiving and illegally possessing a firearm. Id., at 861!864. In light of that conclusion, we held that the only remedy consistent with the congressional intent is for the District Court ... to exercise its discretion to vacate one of the underlying convictions as well as the  J concurrent sentence based upon it. Id., at 864 (emphasis added). We explained further:BQ C   , , ( N N  The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence.  J[ The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credibility and certainly carries the societal stigma accompanying  J any criminal conviction. See Benton v. Maryland,  J 395 U.S. 784, 790!791 (1969); Sibron v. New York, 392 U.S. 40, 54!56 (1968). Thus, the second "   conviction, even if it results in no greater sentence,  J is an impermissible punishment. Id., at 864!865.mBQ d   J  ( , , Under Ball, the collateral consequences of a second conviction make it as presumptively impermissible to impose as it would be to impose any other unauthorized cumulative sentence.  The Government suggests, however, that petitioner will never be exposed to collateral consequences like  J$ those described in Ball because he is subject to multiple life sentences without possibility of release. We need not conclusively resolve the matter, for there is no doubt that the second conviction carried with it, at very least, a $50 assessment. Although the petitioner did not challenge the assessment below, 18 U.S.C. 3013 required the District Court to impose it, and the assessment was therefore as much a collateral consequence of the conspiracy conviction as the consequences  J recognized by Ball would be. As a result, the conviction amounts to cumulative punishment not authorized by Congress.  9H1 d d,IV؃  2  The Government further argues that even if the second conviction amounts to punishment, the presumption against allowing multiple punishments for the same crime may be overcome if Congress clearly indicates that  J it intended to allow courts to impose them. Hunter, 459  J U.S., at 366 (citing Whalen, 445 U.S., at 691!692);  J Garrett, 471 U.S., at 779 (allowing multiple punishment in light of Congress' plainly expressed view). The Government submits that such clear intent can be found here.  The Government finds support for its position in this  J Court's judgment in Jeffers because that judgment allowed convictions under both 846 and 848 to stand. Those convictions, however, had been entered in separate trials and our review only addressed the conviction "   under 848. The Court affirmed that conviction not because anyone on the Court suggested that Congress had intended to authorize dual convictions for the same  J offense,z  uB ԍ FTN  &  XgEpXFr  ddf < Indeed, the parties insisted that the case did not involve multi uB ple punishment concerns, Jeffers, 432 U.S., at 154, and n. 23, and the Government did not contend that Congress intended to authorize the imposition of dual punishments. Because neither the Court nor  uB the parties addressed the issue, Jeffers is a singularly unlikely source for a holding that Congress clearly authorized multiple  uB: convictions. Cf. United States v. Tucker Truck Lines, 344 U.S. 33, 38 (1952).z but rather because the fourJustice plurality decided that Jeffers had waived any right to object to  J8 Jeffers' prosecution for that conviction, see Jeffers, 432 U.S., at 152!154, and because Justice White believed that the two prosecutions were for different offenses.  The sole ground for Justice White's critical fifth vote to affirm the judgment was his belief, set forth in a single short paragraph, that conspiracy was not a lesser  JH included offense of CCE. Id., at 158 (opinion concurring in judgment in part and dissenting in part). In Part II of this opinion we have rejected that view. Accordingly, even if we could infer that the plurality had silently reached the rather bizarre conclusion that Congress intended to allow dual convictions but to preclude other multiple punishments, only four Justices would have supported it, with four others explicitly disagreeing. As to this issue, then, the judgment amounts at best to nothing more than an unexplained affirmance by an equally divided court"a judgment not entitled to precedential weight no matter what reasoning may have  Jh supported it. See Neil v. Biggers, 409 U.S. 188, 192  J@ (1972). The more important message conveyed by Jeffers is found not in the bare judgment, but in the plurality's conclusion, joined by the four dissenters, that CCE and conspiracy are insufficiently distinct to justify a finding H "   that Congress intended to allow punishments for both  J when they rest on the same activity.  uB@ ԍ FTN  &  XgEpXFr  ddf < The Government suggests that convictions are authorized for  uB both 846 and 848 because they  FTN    XFrXFr ff are different sections of the United States Code. Brief for United States 16. This does not rise to the level of the clear statement necessary for us to conclude that despite the identity of the statutory elements, Congress intended to  uB allow multiple punishments. After all, we concluded in Ball that the statutes at issue did not authorize separate convictions, and they were even more distant in the Code. See 470 U.S., at  uB Ԛ863!864 (discussing 18 U.S.C. 922(h) and 18 U.S.C. App. 1202(a) (1984)). If anything, the proximity of 846 and 848 indicates that Congress understood them to be directed to similar,  uB rather than separate, evils. Cf. Albernaz v. United States, 450 U.S. 333, 343 (1981).  uB  The Government further discerns congressional intent to allow  uBB multiple punishment from significant differences between Ball and this case. Brief for United States 19!24. None of its arguments, however, demonstrates that Congress specially authorized convictions for both the greater and lesser included offenses we address  uB today. Whalen, 445 U.S., at 693.  FTN   XFrXFr ff The Government suggests, for  uB example, that the statutes in Ball were directed at virtually iden uB tical activity, while CCE and conspiracy are not. As we have already concluded, however, every proof of a CCE will demonstrate a conspiracy based on the same facts. That overlap is enough to conclude, absent more, that Congress did not intend to allow punishments for both.  9H1 d d-V؃  2  Finally, the Government argues that Congress must have intended to allow multiple convictions because doing so would provide a back up conviction, preventing a defendant who later successfully challenges his greater offense from escaping punishment altogether" even if the basis for the reversal does not affect his conviction under the lesser. Brief for United States 20!22. We find the argument unpersuasive, for there is no reason why this pair of greater and lesser offenses should present any novel problem beyond that posed by o"   any other greater and lesser included offenses, for which the courts have already developed rules to avoid the perceived danger.  J  In Tinder v. United States, 345 U.S. 565, 570 (1953), the defendant had been convicted of theft from a mailbox and improperly sentenced to prison for more than one year even though the evidence only supported a misdemeanor conviction. Exercising our power to do justice as the case requires pursuant to 28 U.S.C. 2106, we ordered the District Court to correct the sentence without vacating the underlying conviction.  JH Relying on Tinder and the practice in state courts, including courts governed by statutes virtually the same as Section 2106, the Court of Appeals for the District of Columbia Circuit later decided that its power to modify erroneous judgments authorizes reduction to a lesser included offense where the evidence is insufficient to support an element of the [greater] offense stated in  J0 the verdict. Austin v. United States, 382 F.2d 129,  J 141!143 (1967).o uBp ԍ FTN  &  XgEpXFr  ddf < The Court of Appeals used this same power in Allison v. United  uB' States, 409 F.2d 445 (CADC 1969), but  FTN   XFrXFr ff noted that the circumstances in which such authority may be exercised are limited. It must be clear (1) that the evidence adduced at trial fails to support one or more elements of the crime of which appellant was convicted, (2) that such evidence sufficiently sustains all the elements of another offense, (3) that the latter is a lesser included offense of the former, and (4) that no undue prejudice will result to the accused.  uB( Id., at 450!451.  Consistent with the views expressed by the D.C. Circuit, federal appellate courts appear to have uniformly concluded that they may direct the entry of judgment fora lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense. See 8A J. Moore, Federal Practice  J 31.03[5], and n. 54 (2d ed. 1995); United States v.  J Ward, 37 F.3d 243, 251 (CA6 1994) (after finding "   insufficient evidence to support CCE count, Court of Appeals vacated CCE conviction and sentence and remanded for entry of conspiracy conviction, which District Court had previously vacated as lesser included offense of CCE), cert. denied, 514 U.S. ___ (1995);  J8 United States v. Silvers, 888 F.Supp. 1289, 1306!1309 (ND Md. 1995) (reinstating conspiracy conviction previously vacated after granting motion for new trial on CCE conviction). This Court has noted the use of such  J a practice with approval. Morris v. Mathews, 475 U.S. 237, 246!247 (1986) (approving process of reducing erroneous greater offense to lesser included offense as long as the defendant is not able to demonstrate that but for the improper inclusion of the [erroneous] charge, the result of the proceeding probably would have been  J different). See also Jones v. Thomas, 491 U.S. 376,  J 384!385, n. 3 (1989) (citing Morris).  There is no need for us now to consider the precise limits on the appellate courts' power to substitute a conviction on a lesser offense for an erroneous conviction  J of a greater offense.& uBH ԍ FTN  &  XgEpXFr  ddf < Indeed, because of our holding today, problems like the one presented in this case are unlikely to arise in the future. A jury is generally instructed not to return a verdict on a lesser included offense once it has found the defendant guilty of the greater offense.  uB$ See, e.g., Seventh Circuit Pattern Criminal Jury Instruction 2.03, in 1 L. Sand, J, Siffert, W. Loughlin, & S. Reiss, Modern Federal Jury Instructions, p. 7!7 (1991).& We need only note that the concern motivating the Government in asking us to endorse either the Seventh Circuit's practice of entering concurrent sentences on CCE and conspiracy counts, or the Second Circuit's practice of entering concurrent judgments, is no different from the problem that arises whenever a defendant is tried for greater and lesser offenses in the same proceeding. In such instances, neither legislatures nor courts have found it necessary"   to impose multiple convictions, and we see no reason why Congress, faced with the same problem, would consider it necessary to deviate from the traditional  J rule.K  uB ԍ FTN  &  XgEpXFr  ddf < In certain circumstances, it may be that the Government will investigate and prosecute an individual for one or more 846 conspiracies without being aware of facts that would justify charging a defendant with a violation of 848 as well. Moreover, a lesser included 846 conspiracy may not always be coterminous with the larger CCE. Because neither instance is true here, we need not explore the consequences of our holding today for purposes of the successive prosecution strand of the Double Jeopardy Clause, see  uB Diaz v. United States, 223 U.S. 442, 448!449 (1912); Brown v.  uB_ Ohio, 432 U.S. 161, 169, n.7 (1977); see also Garrett, 471 U.S., at 786!793, nor need we address how prior convictions for lesser included 846 offenses should be handled for purposes of entering judgment if the later 848 conviction is obtained but then set aside.  9H1 d d,VI؃  2  A guilty verdict on a 848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of 846; conspiracy is therefore a lesser included offense of CCE. Because the Government's arguments have not persuaded us otherwise, we adhere to the presumption that Congress intended to authorize only one punishment. Accordingly, [o]ne of [petitioner's] convictions, as well as its concurrent sentence, is unauthorized punishment for a separate of Jf fense and must be vacated. Ball, 470 U.S., at 864.  The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.  J ` 3It is so ordered.ă