PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-4012

CORNELIUS DOUGLAS STUDIFIN,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CR-99-190)

Argued: December 4, 2000

Decided: February 16, 2001

Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the opinion, in

which Judge Niemeyer and Judge Traxler joined.

_________________________________________________________________

COUNSEL

ARGUED: Lisa Kim Lawrence, LAWRENCE & ASSOCIATES, ARGUED:

Richmond, Virginia, for Appellant. James Brien Comey, Jr., Assistant

United States Attorney, Richmond, Virginia, for Appellee. ON

BRIEF: D. Scott Gordon, LAWRENCE & ASSOCIATES, Rich- BRIEF:

mond, Virginia, for Appellant. Helen F. Fahey, United States Attorney, Stephen W. Miller, Assistant United States Attorney, Richmond,

Virginia, for Appellee.

_________________________________________________________________
OPINION

WILLIAMS, Circuit Judge:

Cornelius Studifin was convicted in the United States District

Court for the Eastern District of Virginia of interfering with interstate

commerce by robbery in violation of 18 U.S.C.A.§ 1951(a) (the

Hobbs Act) (Count I); using a firearm in furtherance of a crime of

violence in violation of 18 U.S.C.A. § 924(c) (Count II); and possession of a firearm by a convicted felon in violation of 18 U.S.C.A.

§ 922(g)(1) (Count III). The district court sentenced Studifin to two

180-month concurrent terms, along with a mandatory minimum 84-

month term to be served consecutively to his other sentences for his

violation of § 924(c). On appeal, we initially address a sentencing

issue of first impression in this Circuit -- Studifin's argument that his

sentence violates the Double Jeopardy Clause because the 1998

amendments to § 924(c) preclude consecutive terms of imprisonment

whenever another provision of law carries a greater mandatory minimum sentence than that imposed under § 924(c). We also address

Studifin's other double jeopardy claims, as well as Studifin's challenges to the sufficiency of the evidence supporting his convictions.

Finding no error, we affirm.

I.

On March 28, 1999, a black male wearing a burgundy and gold

Washington Redskins cap and a black Oakland Raiders jacket robbed

the Community Pride grocery store in Richmond, Virginia. The robber, whose face was masked by a dark stocking, placed a black bag

with a cigarette logo and a silver firearm on the counter and

demanded money from the clerk. The robber took approximately

$200.

Shortly after the robbery, Officer Michael Tunstall noticed a black

male wearing a burgundy and gold Redskins cap and a black Raiders

jacket who was carrying a black bag in his hands and running through

the Community Pride parking lot. Tunstall followed him. After losing

sight of him for a few moments, Tunstall caught up to the man as he

stood near a section of bushes. As Tunstall asked the man for identification, the radio dispatch reported the robbery, including a description

 2
of the robber and the fact that the robber was armed with a silver

handgun. Upon hearing the description of the robber, Tunstall

arrested the man, who was later identified as Studifin. Tunstall

inspected the area of bushes where Studifin had been standing and

found a blue nylon stocking, $196 in cash, and a black bag with a cigarette logo. Tunstall and another officer then searched for the firearm

and recovered a silver Rohm .22 caliber gun approximately fifteen to

twenty-five yards from the area in which Tunstall first confronted

Studifin. After the arrest, Detective Clyde Fisher questioned Studifin,

who waived his Miranda rights, admitted using the firearm, and

described the robbery.

The jury convicted Studifin on all counts and the district court sentenced him to two 180-month concurrent terms for Counts I and III.

The district court also sentenced Studifin to the mandatory minimum

84 months for Count II, to be served consecutively with the other sentences. Studifin also received a three-year-term of supervised release

for each conviction.

Studifin challenges his sentence and convictions on appeal. First,

Studifin argues that his sentence constitutes double jeopardy because

§ 924(c) and § 924(e) punish the same conduct and because the 1998

amendments to § 924(c) prohibit the imposition of a mandatory consecutive sentence pursuant to § 924(c) where the mandatory minimum

sentence from another provision of law is greater than the mandatory

minimum consecutive sentence under § 924(c). Second, Studifin challenges his convictions on sufficiency of the evidence grounds. We

address each issue in turn.

II.

We first address whether Studifin's sentence violates the Double

Jeopardy Clause. Where the issue is solely that of multiple punishment, as opposed to multiple prosecutions, "the Double Jeopardy

Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." United States

v. Luskin, 926 F.2d 372, 377 (4th Cir. 1991) (internal quotation marks

omitted); see also United States v. Johnson, 32 F.3d 82, 84 (4th Cir.

1994) ("B. Johnson") ("Although the bar on double jeopardy restrains

the executive and judicial branches, it leaves the legislature basically

 3
untouched."). In United States v. Johnson, 219 F.3d 349 (4th Cir.) ("S.

Johnson"), cert. denied, 121 S. Ct. 593 (2000), we described the test

for Double Jeopardy in the context of multiple punishments for the

same conduct: "The same conduct can support convictions and sentencing under two different federal statutes as long as each statute

requires proof of an element that the other does not." Id. at 358. "If

the elements of the two statutes do not necessarily overlap, then multiple punishments are presumed to be authorized absent a clear showing of contrary Congressional intent." S. Johnson, 219 F.3d at 359

(internal quotation marks omitted). We review questions of double

jeopardy de novo. See United States v. Brown, 202 F.3d 691, 703 (4th

Cir. 2000).

A.

Studifin argues that the imposition of a mandatory minimum consecutive sentence pursuant to § 924(c) constitutes double jeopardy

because § 924(c) and § 924(e) punish essentially the same conduct,

possession of a firearm during a robbery.1 We disagree. It is clear that

_________________________________________________________________

1 Section 924(e), often called the Armed Career Criminal statute, pro- 1 

vides for a mandatory minimum fifteen-year sentence for a "person who

violates section 922(g) . . . and has three previous convictions" for violent felonies or serious drug offenses. 18 U.S.C.A.§ 924(e) (West 2000).

Section 924(e) provides that

[i]n the case of a person who violates section 922(g) of this title

and has three previous convictions by any court . . . for a violent

felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined not

more than $25,000 and imprisoned not less than fifteen years,

and, notwithstanding any other provision of law, the court shall

not suspend the sentence of, or grant a probationary sentence to,

such person with respect to the conviction under section 922(g).

18 U.S.C.A. § 924(e).

Section 924(c), by contrast, requires a mandatory minimum consecutive sentence of five years or more for persons who use a firearm "in

relation to any crime of violence or drug trafficking crime." 18 U.S.C.A.

§ 924(c) (West 2000). Section 924(c) provides in pertinent part:

(c)(1)(A) Except to the extent that a greater minimum sentence

is otherwise provided by this subsection or by any other provi-

 4
§ 924(c) and § 922(g) each requires proof of an element that the other

does not. Section 922(g)(1) requires proof (1) that the defendant had

been previously convicted of a crime punishable by imprisonment for

a term exceeding one year; (2) that the defendant knowingly possessed, transported, shipped, or received, the firearm; and (3) that the

possession of the firearm was in or affecting interstate commerce

because the firearm had traveled in interstate or foreign commerce at

some point during its existence.2 See United States v. Langley, 62

_________________________________________________________________

sion of law, any person who, during and in relation to any crime

of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced

punishment if committed by the use of a deadly or dangerous

weapon or device) for which the person may be prosecuted in a

court of the United States, uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or

drug trafficking crime--

(i) be sentenced to a term of imprisonment of not less than 5

years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of

imprisonment of not less than 10 years.

18 U.S.C.A. § 924(c).

2 We compare the elements of § 922(g) to the elements of § 924(c) 2 

because the elements of § 922(g) are subsumed within § 924(e). See 18

U.S.C.A. § 924(e) (West 2000) (stating that a violation of § 922(g) triggers § 924(e) where the "person who violates section 922(g) . . . has three

previous convictions" for violent felonies or serious drug offenses). Section 922(g) provides that

It shall be unlawful for any person--

(1) who has been convicted in any court of, a crime punishable

by imprisonment for a term exceeding one year;

. . .

to ship or transport in interstate or foreign commerce, or possess

in or affecting commerce, any firearm or ammunition; or to

receive any firearm or ammunition which has been shipped or

transported in interstate or foreign commerce.

18 U.S.C.A. § 922(g) (West 2000).

 5
F.3d 602, 606 (4th Cir. 1995) (stating elements of§ 922(g)). Section

924(c), by contrast, requires proof (1) that the defendant actively used

or carried a firearm; (2) during and in relation to his commission of

a crime of violence or drug trafficking crime. See United States v.

Mitchell, 104 F.3d 649, 652 (4th Cir. 1997) (stating elements of

§ 924(c)). Thus, violation of § 922(g) requires proof of an element

that § 924(c) does not, i.e., that the defendant was a previously convicted felon; and violation of § 924(c) requires proof of an element

that § 922(g) does not, i.e., active use or carrying of a firearm. "Therefore, each statutory provision includes an element that the other does

not, and multiple punishments are presumed." S. Johnson, 219 F.3d

at 359; United States v. Garrett, 903 F.2d 1105, 1114-15 (7th Cir.

1990) (rejecting argument that because "sections 922(g) and 924(c)

constitute multiple punishments for the same criminal conduct--

possession of a firearm," consecutive sentences imposed for convictions under both 18 U.S.C.A. §§ 922(g) and 924(c) violate the Double

Jeopardy clause); cf. United States v. Presley , 52 F.3d 64, 68 (4th Cir.

1995) (stating that the Armed Career Criminal Act"does not violate

the Double Jeopardy Clause").

B.

Studifin next argues that his sentence constitutes improper double

counting under the Guidelines because the district court both

enhanced his offense level under the Armed Career Criminal guideline, United States Sentencing Commission, Guidelines Manual,

§ 4B1.4 (Nov. 1998), and also imposed the statutory mandatory minimum under § 924(c). Such double counting, however, is not per se

improper. See United States v. Crawford, 18 F.3d 1173, 1179-80 (4th

Cir. 1994) (stating that "triple counting" the same conduct under the

Guidelines "will be upheld unless it is expressly prohibited by the

guidelines" because "the guidelines should be applied as written"

(internal quotation marks omitted)); United States v. Sanders, 982

F.2d 4, 6-7 (1st Cir. 1992) (finding no impermissible double counting

where Sanders was convicted under § 922(g) and§ 924(c) and also

received an enhancement under U.S.S.G. § 4B1.4 as an armed career

criminal); see also 18 U.S.C.A. § 924(c)(1)(A) (providing that the

mandatory minimum sentence should apply even where the underlying crime already "provides for an enhanced punishment if committed

by the use of a deadly or dangerous weapon or device"); cf. B. John-

 6
son, 32 F.3d at 86 ("[T]he penalty provision of § 924(c)(1) states that

the term of incarceration shall be `in addition to the punishment provided for such crime of violence.' This penalty provision further supports our view that Congress was well aware of the cumulative

sentencing effect of § 924(c)(1).").

Studifin points to U.S.S.G. § 2K2.4, which provides that "[t]o

avoid double counting, when a sentence under this section is imposed

in conjunction with a sentence for an underlying offense, any specific

offense characteristic for explosive or firearm discharge, use, or possession is not applied in respect to such underlying offense." USSG

§ 2K2.4, comment. (backg'd). We note, however, that § 2K2.4's

admonitions were considered in calculating Studifin's sentence. The

presentence report indicates that Studifin's underlying robbery sentence was calculated at a base offense level of 20, without the otherwise applicable increase of 4 levels under § 2B3.1 for the specific

offense characteristic of firearm use. (See J.A. at 167.) The district

court used the presentence report's recommended base level to calculate Studifin's sentence for Count I. (J.A. at 132 ("I find that the

defendant's base offense level for count one is 20 .. . .").)3 Thus, the

district court did not violate § 2K2.4's prohibition against double

counting because it did not consider Studifin's firearm use in calculating the offense level for his robbery offense. See Sanders, 982 F.2d

at 7 (recognizing that "[h]ad defendant been separately charged with

the underlying drug offense, the application note would have directed

that defendant's use of a weapon not be considered in calculating the

offense level for the drug offense" but rejecting the argument that the

district court impermissibly double counted by "first raising his

offense level on the felon in possession count from 33 to 34 [pursuant

to § 4B1.4 as an Armed Career Criminal] and in then adding a minimum five-year sentence to the felon in possession sentence [pursuant

to § 924(c)]" (emphasis added)). In other words, the district court did

not improperly double count when calculating Studifin's sentence.

_________________________________________________________________

3 The presentence worksheet for Studifin's § 922(g) conviction also 3 

explicitly recognizes that § 2K2.4 "prohibits the application of specific

offense characteristics applicable to the use of firearms in the underlying

offense of robbery." (J.A. at 169.)

 7
C.

Finally, Studifin argues that there is a "clear showing of contrary

Congressional intent" that defeats the presumption that multiple punishments are authorized. See S. Johnson, 219 F.3d at 359 ("If the elements of the two statutes do not necessarily overlap, then multiple

punishments are presumed to be authorized absent a clear showing of

contrary Congressional intent." (internal quotation marks omitted)).

This brings us to an issue of first impression in this Circuit: Do the

1998 amendments to § 924(c) "unambiguously evidence[ ] a legislative intent to avoid duplicative sentences where other provisions of

law satisfy the objectives of § 924(c) by imposing a mandatory sentence [on] such conduct that is greater than the § 924(c) enhancement?" (Appellant's Br. at 18-19.)

In Bailey v. United States, 516 U.S. 137 (1995), the Supreme Court

addressed the issue of how much the Government must show, beyond

mere possession, in order to establish "use" of the firearm for purposes of § 924(c). The Bailey Court rejected the Government's

broader interpretation of the statute and concluded that "use" required

active employment of the firearm. See id. at 150. Accordingly, in

1998, Congress amended § 924(c) "to provide for increased mandatory minimum sentences for criminals possessing firearms and for

other purposes," H.R. Rep. 105-344, because it"was convinced the

Bailey decision was a setback for law enforcement and crime control." Paul J. Hofer, Federal Sentencing for Violent and Drug Trafficking Crimes Involving Firearms: Recent Changes and Prospects

for Improvement, 37 Am. Crim. Law R. 41, 65 (2000); cf. United

States v. Ceballos-Torres, 218 F.3d 409, 415 (5th Cir. 2000) (noting

that, in the wake of Bailey, "Congress sought to broaden the statute"),

cert. denied, 121 S. Ct. 839 (2001). Prior to 1998, § 924(c) provided

that

"Whoever, during and in relation to any crime of violence

. . . (including a crime of violence . . . which provides for

an enhanced punishment if committed by the use of a deadly

or dangerous weapon . . .) for which he may be prosecuted

in a court of the United States, uses or carries a firearm,

shall, in addition to the punishment provided for such crime

 8
of violence . . . be sentenced to imprisonment for five years

. . . ."

B. Johnson, 32 F.3d at 85 (quoting 18 U.S.C.§ 924(c)(1) (West Supp.

1993)). Under that version of the statute, "[t]he five-year penalty must

run consecutively to any sentence imposed on the crime of violence

and is without parole." B. Johnson, 32 F.3d at 84. The current version

of § 924(c) provides, in pertinent part:

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any

other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime

(including a crime of violence or drug trafficking crime that

provides for an enhanced punishment if committed by the

use of a deadly or dangerous weapon or device) for which

the person may be prosecuted in a court of the United States,

uses or carries a firearm, or who, in furtherance of any such

crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking

crime--

(i) be sentenced to a term of imprisonment of not less than

5 years;

(ii) if the firearm is brandished, be sentenced to a term of

imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of

imprisonment of not less than 10 years.

18 U.S.C.A. § 924(c) (West 2000) (emphasis added).

Studifin argues that the "[e]xcept to the extent" language in

amended § 924(c) prohibits the court from imposing § 924(c)'s mandatory minimum consecutive sentence where the defendant is subject

to a higher mandatory minimum sentence pursuant to another provision of law.4 The Eighth Circuit recently spoke on this issue in United

_________________________________________________________________

4 Studifin's mandatory minimum consecutive sentence under § 924(c) 4 

is seven years. See 18 U.S.C.A. § 924(c)(1)(A)(ii) (West 2000). Studifin

 9
States v. Alaniz, No. 00-1539, 2000 WL 1839321 (8th Cir. Dec. 15,

2000).5

_________________________________________________________________

argues that because he also was subject to a fifteen-year mandatory minimum sentence under § 924(e) as an Armed Career Criminal, he was

"sentenced to a mandatory [minimum] sentence for his firearm possession that was greater than the mandatory minimum sentence imposed by

§ 924(c)(1)(A)," and, thus, "the mandatory [consecutive] sentence of

§ 924(c)(1)(A) should not be invoked." (Appellant's Br. at 21.)

5 The only other decision that we have found that addresses this issue 5 

is an unpublished district court opinion, United States v. Baldwin, No.

1:99-CR-127-01, 1999 WL 1566472 (W.D. Mich. 1999). In Baldwin, the

district court rejected a similar argument, stating that "[t]he Court rejects

Defendant's interpretation of the statute because it is contrary to the plain

language used by Congress and the well-established purpose of providing an enhanced sentence for crimes of violence involving the use of firearms." Id. at *1. Looking to the language of the statute as a whole, the

court stated that

Defendant's argument focuses solely upon the introductory language of § 924(c) added by the 1998 amendment. While the

argument may be plausible when considered only in light of the

first twenty words of § 924(c)(1)(A), the argument fails when

considered in light of Congress' intent, as demonstrated by

§ 924(c)(1)(D)(ii), that persons who use or carry firearms during

the course of a crime of violence or a drug trafficking crime be

subject to enhanced penalties under § 924(c) through consecutive

sentences. Defendant's interpretation of § 924(c) would effectively nullify Congress' intent to impose consecutive sentences by

requiring a defendant to be sentenced under either§ 924(c) or

the underlying crime of violence or drug trafficking, but not

both.

Id. at *2 (emphasis added). The court concluded that

the text of the amendment shows that Congress intended to

broaden, rather than restrict, the reach of the statute. Consistent

with the established purpose of § 924(c), the Court concludes

that the introductory phrase, "Except to the extent that a greater

minimum sentence is otherwise provided by this subsection or

any other provision of law," was intended to allow only for more

severe punishment where another statute provides for greater

consecutive sentencing.

Id. (internal citations omitted).

 10
In Alaniz, the Eighth Circuit reversed the district court's interpretation of the "greater minimum sentence" language in § 924(c) as "referring to any greater minimum sentence, including one for the

predicate drug crime," instead concluding that"[t]he amendment

refers only to a `greater minimum sentence' for the various types of

firearm-related conduct proscribed in § 924(c)(1)." Id. at *1. The

Alaniz court first noted that the "except to the extent" language

"doesn't alter the original statute's clear object of enhancing sentences for predicate drug crimes or crimes of violence with consecutive firearm sentences. Rather, Congress added the new phrase

because the statute's organizational structure changed." Id. at *3. The

Alaniz court stated that "[p]rior to the 1998 amendment, all possible

sentence lengths for the different types of firearm-related conduct

proscribed by the statute were found within an undivided subsection.

Likewise, all of the various sentence lengths for second or subsequent

convictions were contained within the same undivided subsection."

Id. However,

[a]fter the 1998 amendment, the various sentence lengths in

the statute are no longer set forth within an undivided subsection. The amendment preserves all of the old possible

sentence lengths, while adding two new gradations-- not

less than seven years for brandishing a firearm, and not less

than ten years for discharging a firearm -- further refining

the types of firearm-related conduct proscribed by the statute. Because of this increase in sentencing possibilities,

Congress divided what was already a lengthy subsection

into distinct subdivisions.

 Subdivision (c)(1)(A) contains the statute's prefatory language, the basic five-year sentence applicable to most firearms, and the new sentences for brandishing or discharging.

Subdivision (c)(1)(B) now covers the sentence for shortbarreled rifles or shotguns and semiautomatic assault weapons, plus the sentence for machineguns or silencers. Subdivision (c)(1)(C) enumerates the possible sentences for

second or subsequent convictions.

Id. The Alaniz court found that"[c]omparing the old and new versions

of § 924(c)(1), it's apparent that Congress added the phrase `[e]xcept

 11
to the extent that a greater minimum sentence is otherwise provided

by this subsection' to link the remaining prefatory language in

(c)(1)(A) to each sentence length set forth in subdivisions (c)(1)(B)

and (c)(1)(C). Absent that linking phrase, the self-standing provisions

in (c)(1)(B) and (c)(1)(C) are grammatically and conceptually incomplete." Id. The Alaniz court therefore concluded that

we find no support for the proposition (advanced by the district court) that subdivision (c)(1)(A)'s "greater minimum

sentence" clause applies to the predicate drug trafficking

crime or crime of violence of which a particular defendant

has been convicted. Subdivision (c)(1)(A)'s"greater minimum sentence" clause refers only to the firearm-related

conduct proscribed either by § 924(c)(1) or"by any other

provision of law." The ten-year mandatory minimum drug

sentence at 21 U.S.C. § 841(b)(1)(A) does not govern

firearm-related conduct, and therefore does not fall within

subdivision (c)(1)(A)'s reference to "any other provision of

law."

Id. (emphasis added).

We agree with the Alaniz court that in light of the structure and language of § 924(c)(1), it is clear that the"except to the extent" language is designed to "link the remaining prefatory language in

(c)(1)(A) to" the other subdivisions. Alaniz , 2000 WL 1839321, at *3.

We also believe that the "any other provision of law" language provides a safety valve that would preserve the applicability of any other

provisions that could impose an even greater mandatory minimum

consecutive sentence for a violation of § 924(c). In other words, we

read this language as simply reserving the possibility that another statute or provision might impose a greater minimum consecutive sentencing scheme for a § 924(c) violation, and not as negating the

possibility of consecutive sentencing in the circumstances of the present case.

Indeed, in concluding that the 1998 amendments were not intended

to narrow the scope of § 924(c)'s mandatory consecutive sentencing

scheme, we note that Studifin's reading of § 924(c) would, in effect,

negate the imposition of mandatory consecutive sentences for more

 12
serious offenders who qualify as Armed Career Criminals,6 but not for

less serious offenders who have committed fewer prior serious felonies.7

This construction of § 924(c) simply makes no sense in light of Congress's clear intent in § 924(c) to impose mandatory consecutive sentences, as opposed to choosing between one or the other sentence, and

indeed would be patently inconsistent with the intent expressed in

§ 924(c)(1)(D)(ii) to require mandatory consecutive sentences against

those who commit crimes of violence while using or carrying firearms

in furtherance of their crimes.8 Examining the statute as a whole, par-

_________________________________________________________________

6 Under Studifin's reading of§ 924(c), an Armed Career Criminal 6 

would still be subject to mandatory consecutive sentencing if he used a

machinegun or destructive device, used a silencer, or if he had previously

violated § 924(c). 18 U.S.C.A. § 924(c)(1)(B)(ii) & (C) (West 2000)

(imposing mandatory minimum consecutive sentences ranging from

twenty-five years to life).

7 The implausibility of Studifin's broad reading of § 924(c) was simi- 7 

larly noted by the Alaniz court in the context of whether the "except to

the extent" language applied where Alaniz was subject to a greater mandatory minimum sentence for the underlying predicate offense than for

his violation of § 924(c):

The district court's interpretation, which deems the amendment's

mention of a "greater minimum sentence" to refer to a sentence

for the predicate crime, fails to give the statute a sensible construction. That construction would punish those guilty of severe

offenses more leniently, and those guilty of less severe offenses

more stringently, an illogical result. The most serious drug

crimes and crimes of violence (those already carrying mandatory

minimum sentences) would not be enhanced by a consecutive

firearm sentence despite the fact that a gun was involved. Meanwhile, less serious crimes (to which no minimum mandatory sentences apply) would be enhanced by a consecutive firearm

sentence when committed with a gun.

United States v. Alaniz, No. 00-1539, 2000 WL 1839321, at *3-4 (8th

Cir. Dec. 15, 2000).

8 Section 924(c)(1)(D)(ii) provides: 8 

(D) Notwithstanding any other provision of law --

. . . .

(ii) no term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprison-

 13
ticularly in light of the language of § 924(c) and the purpose behind

the 1998 amendments, we do not believe that Congress intended to

narrow § 924(c) by eliminating mandatory consecutive sentences

where another provision imposes a higher mandatory minimum sentence for conduct other than that described in § 924(c). For these reasons, we reject Studifin's interpretation of § 924(c) and conclude that

Studifin's sentence does not constitute double jeopardy.9

III.

We next address Studifin's challenges to his convictions on sufficiency of the evidence grounds. Studifin argues that the district court

should have granted his motion for judgment of acquittal as to Count

I because the evidence was insufficient to establish that he possessed

a Rohm .22 pistol in violation of § 922(g)(1). Studifin also argues that

the evidence was insufficient to identify him as the robber for purposes of Counts I and II. We review a challenge to the sufficiency of

the evidence to determine "`if there is substantial evidence, taking the

_________________________________________________________________

ment imposed on the person, including any term of

imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.

18 U.S.C.A. § 924(c)(1)(D)(ii) (West 2000).

9 Studifin also argues that at sentencing, the district court erred in fail- 9 

ing to depart from the statutory mandatory minimum consecutive 84-

month sentence of § 924(c) because it mistakenly believed that it lacked

the discretion to do so. Studifin recognizes, however, that "[g]enerally,

a sentencing court may not depart below required mandatory minimum

sentences unless the government moves for such a departure based on

substantial assistance." (Appellant's Br. at 16.); see 18 U.S.C.A.

§ 3553(e) (West 2000) (granting the district court limited authority to

depart from the statutory mandatory minimum sentence where the government makes a motion based upon substantial assistance); cf. United

States v. Pillow, 191 F.3d 403, 407 (4th Cir. 1999) (recognizing that

§ 3553(e) permits departure from the statutory mandatory minimum sentence based upon substantial assistance). Studifin's argument is not based

upon substantial assistance, but rather upon the idea that § 924(c)'s statutory mandatory minimum consecutive sentence no longer applies to him

because of the 1998 amendments. In light of our rejection of Studifin's

reading of § 924(c), we find no merit to Studifin's argument.

 14
view most favorable to the Government, to support'" the criminal

conviction. United States v. Mitchell, 209 F.3d 319, 324 (4th Cir.)

(quoting Glasser v. United States, 315 U.S. 60, 80 (1942)), cert.

denied, 121 S. Ct. 123 (2000). "In reviewing the sufficiency of the

evidence, we are not entitled to weigh the evidence or to assess the

credibility of witnesses, but must assume that the jury resolved all

contradictions . . . in favor of the Government." United States v.

Romer, 148 F.3d 359, 364 (4th Cir. 1998) (internal quotation marks

omitted), cert. denied 525 U.S. 1141 (1999).

A conviction under § 922(g)(1) requires evidence (1) that the

defendant was a convicted felon at the time of the offense; (2) that he

voluntarily and intentionally possessed the firearm; and (3) that the

firearm traveled in interstate commerce at some point in time. See

United States v. Hobbs, 136 F.3d 384, 390 (4th Cir. 1998); 18

U.S.C.A. § 922(g) (West 2000). Studifin's basic argument is that

although the jury heard evidence that the silver firearm that the officers found in the field had traveled in interstate commerce, the jury

did not hear sufficient evidence to establish that the silver firearm

belonged to Studifin. Studifin argues that the firearm the officers

found was located fifteen to twenty-five feet away from Studifin, that

no fingerprints tied the weapon to Studifin, and that Officer Tunstall

had watched Studifin closely and yet had not seen Studifin with the

firearm. Studifin also argues that although Detective Fischer testified

that Studifin confessed to carrying the gun, Fischer's testimony was

uncorroborated and did not include a specific reference to the gun

found in the field. Studifin also asserts that although the cashier testified that she saw a silver gun, she could not describe the gun with any

specificity beyond its color.

The jury had ample evidence from which to convict Studifin on

this count. Indeed, the evidence, which sets forth a clear chain of

events linking Studifin with the firearm, clearly supports the conclusion that Studifin possessed the weapon found in the field. For example, the cashier told the police that the robber's face was masked with

a dark stocking, that he wore a black Raider's jacket, burgundy and

gold Redskin's hat, and had a silver handgun and a bag with a cigarette logo on it, and the police dispatcher radioed this description to

the police on patrol. Tunstall saw Studifin, who matched this description, running across the Community Pride parking lot shortly after the

robbery. The police found the silver handgun nearby, as well as a blue

 15
nylon stocking, approximately $200 in cash, and a bag with a cigarette logo on it. These items were found in the area where Tunstall

saw Studifin standing before Tunstall caught up to him. (J.A. at 71-

74.) Moreover, Fisher testified that Studifin confessed to the robbery

and to possessing the firearm. According to Fisher, Studifin explained

that he threw the gun to a different place than the money because he

"was trying for it not be found" and he "didn't want the gun charge."

(J.A. at 93.) Although Studifin challenges the credibility of Fisher's

testimony, "we are not entitled to weigh the evidence or to assess the

credibility of witnesses, but must assume that the jury resolved all

contradictions . . . in favor of the Government." Romer, 148 F.3d at

364 (internal quotation marks omitted). On this record, we have no

difficulty concluding that there was sufficient evidence to support

Studifin's conviction.

Likewise, sufficient evidence supports Studifin's convictions on

Counts I and III. Studifin argues that there was insufficient evidence

to show that Studifin was the perpetrator of the crime for purposes of

Counts I and III. He asserts that the cashier could not identify Studifin

as the robber because the robber wore a mask, the surveillance camera

did not show the robber at the counter, and the money was not actually found on Studifin, but instead was found nearby. As noted above,

however, not only did Fisher testify that Studifin confessed to the robbery, but the evidence also established a chain of events that links

Studifin to the robbery. We find no merit to Studifin's arguments,

which boil down to an attack upon Fischer's credibility and the circumstantial nature of the remaining evidence. See Romer, 148 F.3d

at 364 (stating that credibility determinations and weighing of the evidence are for the jury). We therefore affirm Studifin's convictions.

IV.

In conclusion, Studifin's sentence does not constitute double jeopardy and, contrary to Studifin's arguments, the 1998 amendments to

§ 924 do not narrow the scope of § 924(c)'s mandatory consecutive

sentencing scheme by eliminating mandatory minimum consecutive

sentences for Armed Career Criminals. In addition, Studifin's convictions on all counts were supported by sufficient evidence. We therefore affirm Studifin's convictions and sentence.

AFFIRMED

 16