APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before Adams,*fn* Gibbons, and Garth, Circuit Judges. Before Seitz, Chief Judge, and Aldisert, Gibbons, Rosenn, Hunter, Weis, Garth and Higginbotham, Circuit Judges.
Reargued Nov. 6, 1978 In Banc.
Three issues have been raised before us on this appeal by Pedro Gomez from his criminal conviction under the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 801 Et seq. (1977). First, we are asked to consider whether the defendant Gomez can properly be sentenced on two convictions; one based on possession of a controlled substance with intent to distribute (Count II) and the other based on actual distribution (Count III) when both convictions arise out of the same criminal undertaking. Second, if both sentences cannot be sustained, we are then called upon to decide the appropriate relief to be accorded. Finally, we are asked to review the propriety of the district court's charge concerning specific intent.
We hold that Gomez may not be sentenced for both possession with intent to distribute and actual distribution on the facts of this case. Because the district court imposed separate sentences for each offense, we are therefore required to vacate these sentences and remand for imposition of a single general sentence. We also hold that the district court did not err in its charge to the jury.
A three count indictment was returned against Gomez on November 24, 1975. In the first count (Count I), which is not in issue on this appeal, Gomez was charged with conspiring to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. § 846.*fn1 He was charged in Count II with possession with intent to distribute cocaine on or about April 2, 1975 at Paterson, New Jersey in violation of 21 U.S.C. § 841(a)(1).*fn2 Count III charged Gomez with violating 21 U.S.C. § 841(a)(1) by the actual distribution of cocaine on or about April 2, 1975 at Paterson, New Jersey.*fn3
Substantial evidence was presented at trial which would support Gomez's convictions for conspiracy and for the possession with intent to distribute cocaine, and the actual distribution of one half kilogram of cocaine to John Daniocet, an agent of the Drug Enforcement Administration, on April 2, 1975, at Paterson, New Jersey. No challenge has been made as to the sufficiency of the evidence. The jury returned a verdict of guilty on each count of the indictment. The district court thereupon imposed the following sentence: (1) a fifteen year term of imprisonment on Count I; (2) a ten year term of imprisonment on Count II, to run consecutively to the sentence on Count I; and (3) a fifteen year term of imprisonment on Count III, to run concurrently with the sentence on Count I. The end result was a total term of imprisonment of twenty-five years. In addition, a special three year parole term was imposed on each count. Gomez's appeal was initially heard by a panel of this court. Prior to the filing of the panel opinion, the court reheard argument En banc.
Gomez argues on appeal that 21 U.S.C. § 841(a)(1) should not be construed so as to permit either separate convictions or separate sentences for possessing a controlled substance with intent to distribute and for the actual distribution of that controlled substance, at least when these separate convictions relate to the same drug distribution. In response, the government contends that separate convictions and sentences are appropriate when different evidence has been presented to support each theory of criminal liability, claiming that this is such a case. The legislative history of the Comprehensive Drug Abuse Prevention and Control Act gives us no help in resolving this issue. However, based upon an analysis of the structure of the penalty provisions of the Act and applying relevant canons of statutory construction, we are satisfied that while Gomez could be convicted, he could not be separately sentenced on his convictions under Counts II and III.
The Comprehensive Drug Abuse Prevention and Control Act follows the structure of most modern criminal statutes by separating into discrete components the various acts which are made the subject of criminal liability.*fn4 A reading of the Drug Abuse Act makes it apparent that Congress, in legislating against drug use, intended to encompass every act and activity which could lead to proliferation of drug traffic. Nothing in the statute indicates any congressional intent to limit the reach of this legislation, which is described in its very title as "Comprehensive." If indeed, as we believe, it was the intent of Congress to proscribe all drug activity, then it follows that separate charges and convictions for each component of the offenses described must necessarily be permitted so as to prevent a drug violator from escaping criminal responsibility. Failure to permit the government to bring separate charges and obtain separate convictions on those charges, might enable a criminal defendant to avoid responsibility for his crimes if, on review, an appellate court reversed a single conviction representing only the most factually inclusive offense in a situation where a conviction on a less factually inclusive offense would have been upheld. See United States v. Corson, 449 F.2d 544, 550-51 (3 Cir. 1971) (en banc); Note 17 Infra. In this case, we are satisfied that when Gomez violated 21 U.S.C. § 841(c)(1) by engaging in the act of distributing cocaine and by possessing that cocaine with an intent to distribute it, he was properly charged with two separate violations.*fn5
Our conclusion, however, that separate and discrete Offenses may be charged does not necessarily require that separate and discrete Sentences be imposed when a defendant is convicted on each charge, for we are not convinced that Congress intended to pyramid the sentences that may be imposed when two violations of the statute are proved by but one drug distribution. The penalty provisions of the Act have been orchestrated in meticulous detail. Maximum permissible sentences are made to depend, in part, on the type of substance that is manufactured, possessed, or distributed. Cocaine is a Schedule II narcotic drug, 21 U.S.C. §§ 802(16), 812(c), which places it in the maximum penalty category. Sentence severity also depends on the existence of the defendant's prior convictions and the exact nature of the offense charged. Under the statute, maximum penalties are generally doubled if the defendant has been previously convicted of a drug offense, 21 U.S.C. § 841, or if the crime involved distribution to persons under the age of twenty-one, 21 U.S.C. § 845. In contrast, penalties are reduced when the only crime involved is personal possession. 21 U.S.C. § 844. Conspiracies are subject to punishment separate and apart from the punishment imposed for substantive offenses. 21 U.S.C. § 846. Severe separate penalties are mandated for persons convicted of engaging in a continuing criminal enterprise. 21 U.S.C. § 848.
In giving effect to these penalty provisions, we are guided by "the established rule of construction that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.' " Simpson v. United States, 435 U.S. 6, 14, 98 S. Ct. 909, 914, 55 L. Ed. 2d 70 (1978). Such a rule is informed by the understanding that a court "will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended." Ladner v. United States, 358 U.S. 169, 178, 79 S. Ct. 209, 214, 3 L. Ed. 2d 199 (1958).*fn6 Moreover, an interpretation of the statute prohibiting separate sentences when convictions for possession with intent to distribute and for actual distribution are based on the same drug transaction is in accord with that of the majority of Circuits that have considered the issue. United States v. Stevens, 521 F.2d 334 (6th Cir. 1975); United States v. Atkinson, 512 F.2d 1235 (4th Cir. 1975); Cert. denied, 424 U.S. 973, 96 S. Ct. 1477, 47 L. Ed. 2d 743 (1976). United States v. Olivas, 558 F.2d 1366 (10th Cir.), Cert. denied, 434 U.S. 866, 98 S. Ct. 203, 54 L. Ed. 2d 142 (1977); United States v. Oropeza, 564 F.2d 316 (9th Cir. 1977), Cert. denied, 434 U.S. 1080, 98 S. Ct. 1276, 55 L. Ed. 2d 788 (1978).
Here, Gomez, a first offender convicted under Count II of distributing a Schedule II narcotic drug, was subject to a maximum sentence of fifteen years. We do not think Congress intended that he should also be subject to an additional sentence of fifteen years because the jury found that Gomez possessed with intent to distribute At the same time and place the same cocaine that he was found to have in fact distributed. To permit the imposition of such an additional sentence would be to undermine and distort the detailed penalty scheme which Congress so carefully constructed. It would subject Gomez to a maximum thirty year sentence for the commission of crimes which we believe that Congress intended to punish by no more than a maximum fifteen year sentence.
The government, nonetheless, argues that the imposition of separate sentences on Counts II and III in this case is permissible because different evidence is required to prove the crime of possession with intent to distribute and the crime of actual distribution. In support of this proposition it cites United States v. Horsley, 519 F.2d 1264 (5th Cir. 1973), and United States v. Daniels, 572 F.2d 535 (5th Cir. 1970), two cases in which the Fifth Circuit, without substantial analysis, relied on the "different evidence" test*fn7 to sustain separate convictions and sentences under 21 U.S.C. § 841(a)(1), arising out of the same drug transaction. In both cases, the government had charged possession with intent to distribute and actual distribution. It cannot be ascertained from the factual recitals in these cases whether the possession with intent to distribute and the actual distribution occurred at the same time. To the extent, however, that these cases would authorize the imposition of separate sentences when all that is alleged and proved is the possession with intent to distribute and actual distribution of a single quantity of a drug in a single drug sale, they run counter to our understanding of congressional intent as expressed in the penalty structure of the Comprehensive Drug Abuse Prevention and Control Act. Moreover, to the extent that the Fifth Circuit decisions in Horsley and Daniels are predicated upon a factual setting in which the violations occurred during the same transaction, we cannot agree with the results there reached and we find their rationale unpersuasive. As we have interpreted congressional intent, it is permissible to impose separate sentences only when the violations charged and proved arise out of two discrete transactions.*fn8 The possession and distribution counts with which Gomez was charged in the indictment both plainly related to the single April 2, 1975 transaction ...