United States Court of Appeals,
Fifth Circuit.
No. 96-50882.
UNITED STATES of America, Plaintiff-Appellee,
v.
Johnny Candido MANSOLO, Defendant-Appellant.
Nov. 18, 1997.
Appeal from the United States District Court for the Western
District of Texas.
Before WISDOM, SMITH and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
On April 19, 1996, Appellant Johnny Mansolo was involved in a
gun-shooting incident. The police subsequently discovered that the
gun used by Mansolo had been stolen and that its serial number had
been filed off. As a result, Mansolo was indicted on two counts:
possession of a stolen firearm in violation of 18 U.S.C. § 922(j),
and possession of a firearm with an obliterated serial number in
violation of 18 U.S.C. § 922(k). A jury convicted Mansolo on both
counts on August 20, 1996.
On November 7, 1996, Mansolo received 120 months imprisonment
under the § 922(j) count, and 30 months imprisonment under the §
922(k) count, the latter running consecutively to the former.
Mansolo was also ordered to serve a three-year term of supervised
release as to each count, to be served concurrently. Finally, he
was fined in the amount of $1,000 as to each count and subjected to
a mandatory assessment of $200.
Mansolo appeals claiming that his convictions and sentences
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arising from one indictment alleging violations of two separate
subsections of § 922 violate the Double Jeopardy Clause of the
Constitution. Mansolo also claims that the imposition of
consecutively running sentences was in error.
I.
Mansolo argues that his separate convictions under § 922(j)
and § 922(k) violate principles of double jeopardy.1 He cites the
familiar Blockburger rule, noting that "where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are
two offenses or only one, is whether each provision requires proof
of a fact which the other does not." United States v. York, 888
F.2d 1050, 1058 (5th Cir.1989) (citing Blockburger v. United
States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)).
Relying on this Circuit's decision in United States v. Munoz-Romo,
989 F.2d 757 (5th Cir.1993), Mansolo asserts that "violating two
subsections of 18 U.S.C. § 922 is not, in the sense contemplated by
the Supreme Court in Blockburger, "a violation of two distinct
statutory provisions.' " He thus insists that consecutive
sentences for convictions under different subsections of § 922 for
possession of a single gun on a single occasion are multiplicious
and violate congressional intent.
However, this Court has previously held in United States v.
Nation, 832 F.2d 71 (5th Cir.1987), that separate sentences are
1
While Mansolo did not raise this objection at trial, the
parties are in agreement that this does not bar appellate review.
See United States v. Corona, 108 F.3d 565, 572 (5th Cir.1997).
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permitted for separate violations of § 922(g)(1) (shipping and
transporting of a firearm by a convicted felon) and § 922(i)
(shipping and transporting a stolen firearm) because each violation
requires proof of different elements. As in the Nation case, the
separate sections of § 922 which Mansolo violated each require
proof of different elements.2
Our task therefore is to determine whether the holding in
Munoz-Romo or the holding in Nation controls our decision in this
case. We conclude that Munoz-Romo is not controlling. First,
because Munoz-Romo involved clearly different statutory provisions
(§ 922(g)(1) & (5)), that holding does not necessarily control the
result in this case. Furthermore, Munoz-Romo involved different
subparts of a single subsection of § 922, while this case involves
two separate subsections of § 922.
The Nation case is certainly closer to the circumstances
involved in this case than Munoz-Romo, and the two cases' holdings
are not inconsistent. The decision in Nation was based solely on
the Blockburger analysis. The subsequent Munoz-Romo case adds to
the analysis an additional inquiry as to whether Congress intended
separate sentences to be imposed for violations of the separate
crimes. The conclusion reached in Munoz-Romo depended on the
determination that the "language and structure of § 922(g) disclose
a clear Congressional intent not to impose cumulative punishments
2
A conviction under § 922(j) requires proof that the defendant
knew the firearm was stolen, while a conviction under § 922(k) does
not. A conviction under § 922(k) requires proof that the serial
number of the firearm was obliterated, while a conviction under §
922(j) does not.
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when, because of the offender's status, possession of a single
weapon violates two subdivisions of subsection (g)." Munoz-Romo,
989 F.2d at 759. We read Munoz-Romo, and particularly the
references therein to the Eleventh Circuit's decision in United
States v. Winchester, 916 F.2d 601 (1990), as focusing its analysis
on whether Congress fixed a separate punishment for each of the
subsections of § 922 involved, and if so whether Congress fixed a
separate punishment for any subpart of each such subsection.
Clearly, Congress has fixed separate punishments for both § 922(j)
and § 922(k), see 18 U.S.C. § 924(a)(1)(B) & (a)(2), and there are
no subparts to either § 922(j) or (k). Therefore this case is
virtually indistinguishable from Nation, which involved § 922(g)(1)
and § 922(i). Thus, we hold that there was no error in permitting
Mansolo to be tried and convicted under both 18 U.S.C. § 922(j) and
18 U.S.C. § 922(k).
II.
The statutory maximum sentence for violations of 18 U.S.C. §
922(j) is 120 months of confinement. The statutory maximum
sentence for violations of 18 U.S.C. § 922(k) is 60 months of
confinement. Mansolo was convicted of violations of both of these
subsections of § 922, and was given consecutive sentences which
resulted in a total sentence of 150 months of confinement. The
district court sentenced Mansolo to the maximum sentence for the
violation of § 922(j), 120 months, and then an additional 30 months
of confinement for the violation of § 922(k). Mansolo contends
that because the combined sentences for the two convictions exceed
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the greater of the two statutory maximums, the sentence was imposed
in error.
Plain error review applies on this point. No objection was
registered at trial. In order to redress errors to which there was
no objection at trial, the Court must ascertain that (1) there was
error, (2) the error was plain, (3) the error affects substantial
rights, and (4) if not corrected, the error would seriously affect
"the fairness, integrity or public reputation of judicial
proceedings." United States v. Olano, 507 U.S. 725, 731-32, 113
S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993).
Based upon Mansolo's total offense level of 26 and his
criminal history category of VI, the sentencing range imposed by
the Guidelines was 120 to 150 months. See U.S.S.G. ch. 5, pt. A
(1995) (sentencing table). The district court imposed a sentence
at the high end of the permitted range, and the Sentencing
Guidelines plainly provide:
If the sentence imposed on the count carrying the highest
statutory maximum is less than the total punishment, then the
sentence imposed on one or more of the other counts shall run
consecutively, but only to the extent necessary to produce a
combined sentence equal to the total punishment. In all other
respects sentences on all counts shall run concurrently,
except to the extent otherwise required by law.
U.S.S.G. § 5G1.2(d) (1995).
Rollins v. United States, 543 F.2d 574 (5th Cir.1976), cited
by Mansolo, is inapposite. Rollins involved the imposition of
cumulative sentences for the possession of an unregistered firearm
in violation of 26 U.S.C. § 5861(d) and possession of a firearm
with an unidentified serial number in violation of 28 U.S.C. §
5
5861(i). Unlike the situation presented by Mansolo's case, in
Rollins it was unnecessary to offer any additional proof to
establish the violation of one of the charged offenses if the other
had been proved. In other words, consecutive sentences for the two
offenses charged in Rollins would have violated the Double Jeopardy
Clause under Blockburger. Thus, the situation in Rollins is
distinguishable from the present case.
There does not appear to be any error below—certainly not any
error that would rise to the plain error standard.
III.
Accordingly, the judgment of the district court is AFFIRMED.
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