Armando A. Cordova, Jr., Raymond Gutierrez, Eddie Diaz Andthomas William Martinez, Petitioners-appellants, v. Levi Romero, Warden, and Attorney General of the State Ofnew Mexico, Respondents-appellees, 614 F.2d 1267 (10th Cir. 1980)

In this consolidated appeal four prisoners in the New Mexico penitentiary challenge the district court's denial of their petitions for habeas corpus. Each argues that as a result of a single act the use of a firearm in the commission of a crime his sentence was twice enhanced, thereby violating the constitutional prohibition against double jeopardy.

Although the underlying crimes committed by the petitioners vary, the use of a firearm had equivalent effects on the sentences of each. We will therefore use the particulars of only one case to delineate the issue on appeal.

Cordova was convicted of two counts of aggravated assault in violation of N.M.Stat.Ann. § 30-3-2A (1978).¹  The crime of aggravated assault requires use of a deadly weapon,²  a requirement satisfied by the firearm used by Cordova. N.M.Stat.Ann. § 30-1-12 B (1978). While simple assault is a petty misdemeanor, aggravated assault is a fourth degree felony, punishable by imprisonment of from one to five years. Because Cordova used a firearm in the commission of a felony, he also fell within the explicit language of New Mexico's firearm sentencing statute, N.M.Stat.Ann. § 31-18-4.³  As a result, Cordova's sentences, which would have been one-to-five-year terms if he had committed assault with any deadly weapon other than a gun, were mandatorily set at six-to-ten years. Thus, although more than one statute is invoked, the ultimate effect of the challenged New Mexico scheme is to fix one range of sentences for certain crimes committed using a gun, a different range for those same crimes committed with any other deadly weapon, and a still different range if no deadly weapon is employed. The New Mexico legislature has obviously concluded that the means employed in the commission of felonies determines the seriousness of the crime and fixed a single range of sentences for each level of gravity.

The Double Jeopardy Clause is aimed at the improper exercise of prosecutorial and judicial discretion. "The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishment; but once the legislature has acted courts may not impose more than one punishment for the same offense and prosecutors ordinarily may not attempt to secure that punishment in more than one trial." Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187 (1977). By their explicit nature the New Mexico sentencing provisions do not increase discretion. Had it been more clearly expressed, the scheme without question would be constitutionally sound.⁴  If we were to overturn the adopted scheme for its inartful form, our "judicial veto . . . would operate not as a substantive or penological restriction but as a literary critique of the legislature." Note, Twice in Jeopardy, 75 Yale L.J. 262, 302 (1965). Although a noble pursuit, literary criticism is normally not this court's calling.

While we are not bound by New Mexico's determination of the double jeopardy implications of its statutes, we are bound by the state's interpretation of the language of its own statutes and of the legislative intent behind them. See Garner v. Louisiana, 368 U.S. 157, 169, 82 S. Ct. 248, 254, 7 L. Ed. 2d 207 (1961). The New Mexico Court of Appeals has found that the firearm sentencing statute "does not create a new class of crimes. Rather, this statute provides for additional consequences for felonies committed by use of a firearm." See State v. Gabaldon, 92 N.M. 230, 585 P.2d 1352, 1356 (Ct.App.), cert. denied, 92 N.M. 260, 586 P.2d 1089 (1978). With the statutes so interpreted, the state has acted within its power to fix punishments.

Petitioners direct us to the suggestive dictum of Simpson v. United States, 435 U.S. 6, 11, 98 S. Ct. 909, 912, 55 L. Ed. 2d 70 (1978): "Cases in which the Government is able to prove violations of two separate criminal statutes with precisely the same factual showing . . . raise the prospect of double jeopardy . . . ." In Simpson, however, the second federal statute is not merely a firearm sentencing statute. The Court explicitly noted that the firearm statute creates a distinct offense. 435 U.S. at 10, 98 S. Ct. at 911.⁵  The enactment specifically provides for "conviction under this subsection," 18 U.S.C. § 924(c) (2), and Simpson had been charged with violating the firearm statute in a separate count. In contrast, the New Mexico firearms statute is, by its own terms and in actual application, directed at sentencing only. The state court in Gabaldon agreed. 585 P.2d at 1356.

In these cases petitioners did not face "dual penalties," as they argue, but one more severe penalty for a single offense committed with a gun. We have nothing in the record before us to justify any finding of prosecutorial or judicial abuse, and these statutes, though inartfully drafted, are not outside the range of legislative prerogative.

AFFIRMED.