Unpublished Dispositionjackie Thomas Norris, Petitioner-appellant, v. United States of America, Respondent-appellee, 837 F.2d 476 (6th Cir. 1988)

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US Court of Appeals for the Sixth Circuit - 837 F.2d 476 (6th Cir. 1988) Jan. 21, 1988

Before MERRITT and RYAN, Circuit Judges, and JOHN W. PECK, Senior Judge.


Petitioner appeals the district court's judgment dismissing his motion to vacate, set aside or correct his sentences filed under 28 U.S.C. § 2255. The appeal has been referred to a panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the certified record and the parties' briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Petitioner claimed that his consecutive five year sentences for convictions under 18 U.S.C. §§ 842(a) (2) and 842(i) (1) violates the double jeopardy clause of the fifth amendment. He maintains that one offense was committed because the violations resulted from a single transaction and were proven by the same evidence.

Upon consideration, we conclude that petitioner committed two separate offenses when he violated both 18 U.S.C. §§ 842(a) (2) and 842(i) (1) because each violation required proof of a distinctive fact. See Blockburger v. United States, 284 U.S. 299 (1932); Albernaz v. United States, 450 U.S. 333, 336 (1981); United States v. Sutton, 700 F.2d 1078, 1080 (6th Cir. 1983). We further conclude that the imposition of consecutive sentences for the simultaneous violations of the statutes comported with congressional legislative intent. See Sutton, 700 F.2d at 1080. The fact that the same evidence supported both convictions is irrelevant. See Albernaz, 450 U.S. 333; United States v. Davis, 809 F.2d 1194 (6th Cir. 1987).

Accordingly, the district court's judgment is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.