Notice: Seventh Circuit Rule 53(b)(2) States Unpublished Orders Shall Not Be Cited or Used As Precedent Except to Support a Claim of Res Judicata, Collateral Estoppel or Law of the Case in Any Federal Court Within the Circuit.united States of America, Plaintiff/appellee, v. Richard J. Heath, Defendant/appellant, 978 F.2d 1262 (7th Cir. 1992)
Annotate this CaseBefore FLAUM, MANION and KANNE, Circuit Judges.
ORDER
Richard Heath pleaded guilty to one count each of mail and wire fraud, 18 U.S.C. §§ 1341 and 1343, and the judge sentenced him to two consecutive four-year terms of imprisonment. Heath moved to amend his sentence, Fed. R. Crim. P. 35(a), claiming that it violated the Double Jeopardy Clause. The court denied the motion, and Heath appealed.
The district court was entitled to impose a separate penalty for each count of conviction if the counts were intended to be separate offenses; that is, if each offense required "proof of an additional fact which the other d [id] not." Blockburger v. United States, 284 U.S. 299, 304 (1932). We already have determined that wire fraud and mail fraud are separate offenses requiring separate and distinct elements of proof. United States v. Hartmann, 958 F.2d 774, 792-93 (7th Cir. 1992). The fact that we decided Hartmann after Grady v. Corbin, 110 S. Ct. 2084, 2091 (1990), trumps Heath's argument that Grady made Blockburger inapplicable to this case.
AFFIRMED
After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed. R. App. P. 34(a); Cir.R. 34(f). No such statement having been filed, the appeal has been submitted on the briefs
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