Unpublished Disposition, 848 F.2d 199 (9th Cir. 1988)

MEMORANDUM^** 

Navarrette claims he was subjected to double punishment in violation of the double jeopardy clause of the Fifth Amendment when he received separate but concurrent sentences for conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and distribution of heroin in violation of 21 U.S.C. § 841(a) (1). We find his arguments without merit and affirm the conviction on both counts.

Navarrette argues that the conspiracy to distribute necessarily included distribution, apparently because the indictment included as among the overt acts committed in furtherance of the conspiracy certain conduct which was also related to the distribution charge. It is well established that the double jeopardy clause ordinarily does not prohibit separate sentencing for both conspiracy and a substantive offense based on the same conduct. U.S. v. Calabrese, 825 F.2d 1342, 1346 (9th Cir. 1987); U.S. v. Rubalcaba, 811 F.2d 491, 494-95 (9th Cir. 1987). It is immaterial that the overt acts charged in the conspiracy count are also charged as a substantive offense. Pinkerton v. U.S., 328 U.S. 640, 644 (1946).

There seem to be two prongs to Navarrette's argument that his case is an exception to this general rule. First he cites U.S. v. Austin, 529 F.2d 559 (6th Cir. 1976), apparently suggesting that his case is subject to the Sixth Circuit's "same evidence" test. However, we have repeatedly declined to adopt that test. Calabrese, 825 F.2d at 1346; Rubalcaba, 811 F.2d at 495.

Next Navarrette attempts to analogize his case to Ball v. U.S., 470 U.S. 856 (1985), where the Supreme Court held that a felon could not be convicted and concurrently sentenced under 18 U.S.C. § 922(h) (1) for receiving a firearm and under 18 U.S.C. App. Sec. 1202(a) (1) for possessing the same weapon. In Ball the court applied the statutory construction test stated in Blockburger v. U.S., 284 U.S. 299, 304 (1932), and concluded that Congress did not intend to subject felons to two convictions for these violations because proof of illegal receipt of the firearm necessarily included proof of its illegal possession. 470 U.S. at 862. The legislative history supported that reading of congressional intent. Id. at 862-64.

Navarrette seems to think two conclusions follow from the alleged similarity to Ball: 1) the Blockburger test is inapplicable and 2) Congress did not intend to subject a person to separate punishments for conspiring to distribute and distributing heroin. The premise and both conclusions are incorrect.

The statutory provisions at issue here are unlike those in Ball because a conspiracy conviction does not require proof of actual distribution and the distribution conviction does not require proof that there was an agreement. See Rubalcaba, 811 F.2d at 495; U.S. v. Wylie, 625 F.2d 1371, 1381 (9th Cir. 1980) (acknowledging applicability of the general rule to the statutory provisions at issue but finding Blockburger inapplicable for other reasons). Unlike in Ball, each conviction requires proof of a fact which the other does not, and therefore each may be punished separately under the Blockburger test. Id.

Second, even if the analogy to Ball were valid, it does not follow that Blockburger is inapplicable. In Ball the Court applied, not disregarded, Blockburger.

Finally, we would reach the same conclusion regarding Congress's intent whether or not Blockburger applied. Without relying on the Blockburger test, we have previously held that Congress authorized cumulative punishments for conspiracy to distribute narcotics in violation of 21 U.S.C. § 846 and distribution in violation of 21 U.S.C. § 841(a) (1). Wylie, 625 F.2d 1381-82. We need not rely on the Blockburger test to ascertain legislative intent with respect to the imposition of separate sentences for these violations. Id. at 1382.

AFFIRMED.