United States of America, Plaintiff-appellee, v. Rita Darlene Brown, Defendant-appellant, 602 F.2d 909 (9th Cir. 1979)

Brown appeals from an order denying her motion to correct her sentence under Rule 35 of the Federal Rules of Criminal Procedure. Pursuant to a plea bargain, Brown pleaded guilty to one count of bank robbery, charging violation of 18 U.S.C. § 2113(a), and one firearm count, charging violation of 18 U.S.C. § 924(c). She was sentenced to 20 years' imprisonment on the bank robbery charge and to an additional five years on the firearm charge, the sentences to run consecutively. She argues that Simpson v. United States, 435 U.S. 6, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978) prohibits sentencing her under both section 2113(a) and section 924(c). We disagree.

The issue in Simpson was "whether §§ 2113(d) and 924(c) should be construed as intended by Congress to authorize, in the case of a bank robbery committed with firearms, not only the imposition of the increased penalty under § 2113(d), but also the imposition of an additional consecutive penalty under § 924(c)." (435 U.S. at 8, 98 S. Ct. at 910-11.) The Simpson Court answered the question negatively because identical proof was required to support a conviction under section 2113(d) and section 924(c). To prove a violation of section 2113(d), the Government had to establish that the defendant used "a dangerous weapon or device" to rob the bank. To prove a violation of section 924(c), the Government had to establish that the defendant used or carried a firearm to rob the bank (the substantive offense from section 2113(d)).

The Simpson situation does not exist in our case because a person can be convicted for violating section 2113(a) without using or carrying any dangerous weapon, firearm, or device. Thus, a person can violate section 2113(a) without at the same time violating either section 2113(d) or section 924(c).¹  However, a person cannot violate both section 2113(a) and section 924(c) without at the same time violating section 2113(d). The real issue is, therefore, whether Congress intended to permit prosecutors to obtain potentially higher penalties in armed bank robbery cases by charging a violation of section 2113(a) plus section 924(c), rather than accepting the lesser potential penalties involved in charging a violation of section 2113(d) alone, or, as in Simpson, in combination with section 924(c).

We can find nothing either in the legislative history of section 924(c) or in the Simpson case that suggests any congressional intent to prevent the choice that the prosecutor made in Brown's case. We must look elsewhere. The place to begin is the Blockburger test: "The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, (1932) 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306: " 'The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether these are two offenses or only one, is whether each provision requires proof of a fact which the other does not . . . .' . . . 'If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes . . . .' Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975). " (Brown v. Ohio (1977) 432 U.S. 161, 166, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187.)

Sections 2113(a), 2113(d), and section 924(c) are three distinct statutory provisions. Simpson tells us that a combination of section 2113(d) and section 924(c) is effectively one offense because identical proof is required to convict a bank robber under section 2113(d) alone, or section 2113(d) plus section 924(c). Simpson tells us nothing about combining section 2113(a) with section 924(c), because the same proof is not required under both sections. Blockburger does not help because that case does not consider the question whether the prosecutor can combine two different statutes even though the combination would require proof identical to a third statutory provision.

Our issue is resolved by United States v. Batchelder (1979)--- U.S. ----, 99 S. Ct. 2198, 60 L. Ed. 2d 755. In that case, the Court was concerned with two overlapping provisions in the same statute, both of which prohibited convicted felons from receiving firearms, but each of which authorized different maximum penalties. The question was whether a defendant convicted of the offense carrying the greater penalty could be sentenced only under the more lenient provision when his conduct violated both. The Court held that it was within the prosecutor's discretion to elect to prosecute under the statute that carried the harsher penalty. Authority to choose the statute under which the prosecution will proceed carries with it the authority to choose the potential penalty for the offense. "This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute either so long as it does not discriminate against any class of defendants." (Id. at ----, 99 S. Ct. at 2204.)

Accordingly, Brown's prosecutor was free to select the combination of section 2113(a) and section 924(c), which results in a potential maximum penalty substantially in excess of the penalty that could be exacted under section 2113(d), even though the same proof would also be required if the prosecutor had charged under the more lenient provisions of section 2113(d).² 

AFFIRMED.