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July 7, 1994


The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 On 10 November 1993, Edward Stokes ("Stokes") was indicted by a Federal grand jury on three counts of a four-count indictment (the "Indictment"). Count one of the Indictment ("Count One") charged Stokes with carjacking -- taking a motor vehicle from another person by force, intimidation and violence while possessing firearms -- in violation of 18 U.S.C. § 2119. Count two of the indictment ("Count Two") charged Stokes with using and carrying firearms in connection with a crime of violence, namely the carjacking charged in Count One, in violation of 18 U.S.C. § 924(c). Count three of the Indictment ("Count Three") charged Stokes with possession of firearms as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). A jury convicted Stokes on all three counts.

 This opinion, which addresses Stokes' objection regarding sentencing for those charges, is rendered pursuant to the Rule 8(4) of the Rules of the United States Court of Appeals for the Third Circuit. *fn1" At sentencing, Stokes argued that consecutive sentences for Count One and Count Two imposed multiple punishment for the same underlying offense and, therefore, violated the Double Jeopardy Clause of the United States Constitution, U.S. Const. amend. V (the "Double Jeopardy Clause"). Stokes' argument was rejected.


 The victims immediately called the East Orange police and reported the carjacking. Id. The police responded to the scene of the carjacking where the victims provided the police with a description of Stokes and Bishop. Id. The description was transmitted over the police radio and Stokes and Bishop were soon observed in the stolen vehicle travelling toward Newark, New Jersey. Id. The police began following the vehicle and Stokes, who was driving the stolen car, attempted to elude the police. Id. At this point, the police gave chase. Id. Eventually, the stolen vehicle struck another vehicle, Stokes lost control and the car crashed onto the sidewalk, hit the side of a liquor store and came to a stop. Id. Stokes then jumped out of the driver's side window and attempted to flee on foot. Id. Bishop jumped out of the passenger side of the car and also fled on foot. A later search of the stolen vehicle revealed two loaded handguns, one of which had been reported stolen. Id.

 Stokes was apprehended by the police after a brief foot chase. Id. at 5. He was then taken to the East Orange police station where he was positively identified by the victims of the carjacking. Id. Bishop was not apprehended until approximately two months later when he was arrested in another state pursuant to a warrant for an unrelated murder charge.

 After indictment, Stokes filed pre-trial motions to dismiss Count One and Count Two of the Indictment. *fn2" Stokes argued that Count One, the carjacking charge, was not a valid exercise of congressional power to regulate interstate commerce. As to Count Two, Stokes argued that 18 U.S.C. § 924(c), which imposes mandatory consecutive punishment for the use of a firearm in a violent crime -- carjacking in the instant case -- violates the Double Jeopardy Clause. Judge Brown rejected both arguments and denied the motions to dismiss. See Transcript of Proceedings, dated 3 January 1994. The motion to dismiss Count Two, however, was dismissed without prejudice; Stokes was advised he could renew his argument at the time of his sentencing.

 On 16 February 1994, a jury found Stokes guilty of carjacking and of using and carrying firearms during and in relation to a crime of violence. On 18 February 1994, the same jury found Stokes guilty of possessing a firearm as a convicted felon.

 For an offense level of twenty-nine with a criminal history category of VI, the Guidelines provide a sentencing range of 151 to 188 months. As a result of the conviction on Count Two, section 2K4.1(a)(2) requires that sixty months be added to that range, culminating a range of 211 to 248 months. U.S.S.G. § 2K4.1(c)(2).

 On 23 June 1994, Stokes was sentenced to 248 months imprisonment; 180 months on Count One, sixty months on Count Two and eight months on Count Three, all terms to run consecutively. See Transcript of Proceedings, dated 23 June 1994 (the "Sentencing Hrg. Tr."). Stokes was also sentenced to concurrent three-year terms of supervised release on each count and was fined $ 5,000. Id. A special assessment of $ 50 per count was imposed. Id.

 On 24 June 1994, Stokes filed a Notice of Appeal, appealing from the judgment entered on 23 June 1994, which adopted the factual findings and guideline applications in the Pre-Sentence Report.


 At the sentencing hearing, Stokes did not object to the calculated offense level or criminal history category in the Pre-Sentence Report. *fn4" He did, however, renew his pre-trial objection to the five-year consecutive term of imprisonment imposed pursuant to section 924(c). Stokes argued the imposition of the mandatory five-year enhancement to his carjacking offense constitutes multiple punishment in violation of the Double Jeopardy Clause. See Stokes Brief.

 The Fifth Amendment of the Constitution provides, in pertinent part: "Nor shall any person be subject for the same offence to be twice put in jeopardy for life or limb." U.S. Const. amend. V. The guarantee against double jeopardy affords three different types of protection: (1) it protects against a second prosecution for the same offense after acquittal, (2) it protects against a second prosecution after conviction and (3) it protects against multiple punishments for the same offense. Albernaz v. United States, 450 U.S. 333, 343, 67 L. Ed. 2d 275, 101 S. Ct. 1137 (1981); North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Stokes' objection was based upon the prohibition of multiple punishments for the same offense.

 The primary method for determining whether two statutes proscribe the same offense is the test articulated by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932). In that case, the Court devised a rule of statutory construction to aid in determining whether violations of two distinct statutory provisions are "the same offense" for Double Jeopardy purposes.

The applicable rule is 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.

 Id. at 304; see United States v. Woodward, 469 U.S. 105, 107, 83 L. Ed. 2d 518, 105 S. Ct. 611 (1985).

 In Whalen v. United States, 445 U.S. 684, 63 L. Ed. 2d 715, 100 S. Ct. 1432 (1980), the Court placed the following qualification on the Blockburger test:

The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the "same offense," they are construed not to authorize cumulative punishment in the absence of a clear indication of contrary legislative intent.

 Id. at 691-92.

 A year later in Albernaz, the Court further qualified the use of the Blockburger test, stating: "The Blockburger test is a 'rule of statutory construction,' and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent." Albernaz, 450 U.S. at 340. In fact, as the Court stated in Missouri v. Hunter, 459 U.S. 359, 74 L. Ed. 2d 535, 103 S. Ct. 673 (1983),

simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rule requiring courts to negate clearly expressed legislative intent. . . . Legislatures, not courts, prescribe the scope of punishments.
Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same" conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or ...

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