United States Court of Appeals,

Fifth Circuit.

No. 91–1374

Summary Calendar.

UNITED STATES of America, Plaintiff–Appellee,

v.

Joe Willie PARKER, Defendant–Appellant.

May 13, 1992.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant Joe Willie Parker (Parker) appeals the district court's denial of his motion to vacate

sentence under 28 U.S.C. § 2255. We affirm.

In April 1987, Parker was indicted on four counts, and in August 1987 he was convicted, on

his guilty plea, of counts one and three of the indictment. Pursuant to the plea bargai n, the two

remaining counts were dismissed. He was sentenced to consecutive terms of five years on count one

and ten years on count three. Parker's section 2255 motion attacks his sentence on the ground that

his counsel was ineffective for having failed to urge at or before sentencing that the double jeopardy

clause barred sentencing for both counts one and three.

The offenses charged in counts one and three were each alleged to have been committed by

Parker "on or about March 22, 1987, in Lauderdale County" Mississippi. Count one charged that

Parker, then convicted of a crime punishable by imprisonment for more than a year, "did receive a

firearm, to-wi t: a Smith and Wesso n ... revolver ... which had been shipped or transported in

interstate or foreign commerce, all in violation of Section 922(g) ... Title 18, United States Code."

Count three alleged that Parker "knowingly possessed a Stevens Model 95A .410 shotgun

... with abarrel less than 18 inches in length and an overall length of less than 26 inches ... not registered to"

Parker "in the National Firearms and Transfer Record, in violati on of Sections 5861(d) and 5871,

Title 26, United States Code."

Accepting, arguendo, Parker's impl icit premise that the receipt of the revolver charged in

count one and the possession of the unregistered sawed-off shotgun charged in count three each refer

to Parker's possession of both weapons at the same time and place, we nevertheless conclude that the

relevant statutes authorize, and the double jeopardy clause does not prohib it , his conviction and

punishment for both offenses in the same prosecution.

Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), states

that "[w]here 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 an additional fact which the other does not." Here, the two counts are

clearly under "distinct statutory provisions." Count three deals only with provisions of Title 26;

count one only with Title 18. Hence, Blockburger's predicate for its test is met. C f. United States

v. Evans, 854 F.2d 56, 58–59 (5th Cir.1988) ( Blockburger not applied where act or transaction does

not violate two distinct statutory provisions). Applying the B lockburger test, it is plain that there are

two offenses. Not only does each count involve an entirely different weapon, but count one requires

proof that Parker was a convicted felon and count three does not, while count three requires proof

t hat t he shotgun was smaller than a certain size (26 U.S.C. § 5845(a)(1) & (2)) and was no t

registered to Parker and count one does not require proof of either size or nonregistration.

Parker relies on United States v. Hodges, 628 F.2d 350 (5th Cir.1980) and Rollins v. United

States, 543 F.2d 574 (5th Cir.1976). These cases are inapposite. R ollins involved a single possession

of the same weapon in violation of two subdivisions of section 5861 ; we held that a combined

sentence on those two counts could not exceed the maximum authorized by 26 U.S.C. § 5871, thepenalty statute applicable to section 5861. In H odges, there were two weapons possessed at the same

time and place, but the statutes violated, 18 U.S.C. §§ 922(h) and 1202(a), were essentially redundant

as to the conduct proscribed. S ee United States v. Batchelder, 442 U.S. 114, 99 S.Ct. 2198, 2201,

60 L.Ed.2d 755 (1979) (noting "the partial redundancy of §§ 922(h) and 1202(a)" and that "§§ 922(a)

and 1202(a) both prohibit convicted felons ... from receiving firearms").

Here, in contrast to Rollins and Hodges, we deal with statutes contained in wholly different

titles of the United States Code. Moreover, the focus and subject matters of each statute are clearly

distinct from those of the other. The focus of section 922(g) is o n the defendant's status at the

relevant time as a convicted felon (or as having some other disqualifying personal characteristic, such

as being a fugitive or adjudicated mental defective, not related to anything about t he particular

weapon); this is irrelevant under section 5861. Registration is the focus under section 5861(d), but

is immaterial under section 922(g). Moreover, the statutes generally cover different types of firearms.

Those covered by section 922(g) "are generally innocent, lawful items," Evans at 60, while section

5861 excludes most ordinary firearms. S ee United States v. Anderson, 885 F.2d 1248, 1250–51 (5th

Cir.1989) (en banc). Possession of the revolver involved in count one wo uld not have violated

section 5861(d). Congress has in general prohibited two separate and distinct categories of conduct

in §§ 922(g) and 5861(d): the possession of any firearm by a felon; and the possession by anyone

of any of a small class of especially dangerous weapons, if the particular weapon is not registered to

the possess o r. Further, section 922(g) is plainly not a taxing statute, and explicitly relies on and

requires a relationship to interstate or for eign commerce. By contrast, "Section 5861(d) making

possession of an unregistered weapon unlawful is part of the web of regulation aiding enforcement

o f t he transfer tax provision in [26 U.S.C.] section 5811" and "the constitutional bedrock fo r t he

statute" is "the power to tax" rather than "the commerce power." United States v. Ross, 458 F.2d

1144, 1143 & n. 3 (5th Cir.1972). S ee also Sonzinsky v. United States, 30 U.S. 506, 57 S.Ct. 554,

81 L.Ed. 772 (1937); United States v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.Ill.1991).

Thus, the different statutes involved here are distinct from each other in a far more significant manner1 Parker argues that we should disregard nonregistration because felons are not eligible for

registration (presumably under 26 U.S.C. § 5841). He cites no authority for this proposition, only

a case holding that, pursuant to 18 U.S.C. § 921(a)(20), one whose civil rights have been restored

under state law is not a felon for purposes of section 922(g)(1). See United States v. Edw ards,

745 F.Supp. 1477 (D.Minn.1990). Edwards has nothing to do with section 5841 or section

5861(d), except for the coincidence that the prior offense there was a violation of section

5861(d). Even if Parker were correct in his assumption respecting eligibility for registration under

section 5841, his conclusion would not follow. There could well be an opportunity to register the

firearm (as defined in section 5845) before the felony conviction. Further, Parker's argument

amounts to an invitation, which we cannot accept, to judicially create an exemption from section

5861(d) for felons, something Congress obviously neither authorized nor intended. and to a far greater extent than was the case with respect t o t he different statutory provisions

involved in Rollins and Hodges. Accordingly, it is appropriate to apply the B lockburger presumption

of congressional intent as to the separateness of the offenses charged in counts one and three. See

Evans at 58 & n. 3.

Parker makes a confusing argument to the effect that co unt t hree, charging a violation of

section 5861(d), must be regarded as a lesser included offense of section 922(g) because possession

by Parker of the sawed-off shotgun covered by count three would also violate section 922(g). Parker

would then, we infer, have us treat both counts one and three as charging violations of section 922(g),

with the result that, under the Hodges rationale, he could not be punished for bo t h offenses even

though they involved different weapons. The difficulty with this argument is that one offense is not

lesser included of another unless each statutory element of the lesser o ffense is also a statutory

element of the greater offense. S ee United States v. Schmuck, 489 U.S. 705, 109 S.Ct. 1443, 103

L.Ed.2d 734 (1989); U

nited States v. Browner, 937 F.2d 165, 168 (5th Cir.1991). Here the putative

lesser offense, that under section 5861(d), has at least two statutory elements, namely nonregistration

and the "sawed-off" natu re o f t he shotgun, neither of which is a statutory element under section

922(g). Thus the lesser included offense argument necessarily fails. 1

In the present setting, the result is not changed by Grady v. Corbin, 495 U.S. 508, 110 S.Ct.

2084, 109 L.Ed.2d 548 (1990). There, in the context of successive state prosecutions, the Supreme

Court looked to the actual "conduct" that would be proved to obtain a conviction, rather than merely2 For the reasons previously stated, the conclusion concerning congressional intent is otherwise

when the question is whether a section 5861(d) violation is a separate offense from a section

922(g)(1) violation.

3 Other "conduct" differences between counts one and three are that count one requires proof

of Parker's status as a felon, while count three does not; and count three requires proof that the

weapon was subject to required registration ( i.e., was "sawed-off") but not registered, while

count one does not. Even if we hypothesize that the same weapon was involved in each

count—not the case here—these differences might be sufficient to constitute separate offenses for

Grady purposes, but we need not, and do not, decide that question.

4 See, e.g., the following from Grady, viz:

"The Blockburger

test was developed "in the context of multiple punishments

imposed in a single prosecution.' Garrett v. United States, 471 U.S. 773, 778, 105

S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985). In that context, "the Double Jeopardy

Clause does no more than prevent the sentencing court from prescribing greater

punishment than the legislature intended.' Missouri v. Hunter, 459 U.S. 359, 366,

103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983).... The Blockburger test is simply a

"rule of statutory construction,' a guide to determining whether the legislature

intended multiple punishments. Hunter, supra, at 366, 103 S.Ct., at 678.

"Successive prosecutions, however, whether following acquittals or

convictions, raise concerns that extend beyond merely the possibility of an

enhanced sentence.... Multiple prosecutions also give the State an opportunity to the statutory offense elements, to determine whether the sec ond prosecution was constitutionally

barred by the double jeopardy clause. I d. 110 S.Ct. at 2093–94. G rady is of no avail to Parker. To

begin with, on a strictly "conduct" basis it is clear that counts one and three are different offenses,

most obviously because each count involves a different weapon. H odges does not suggest otherwise;

it merely concluded "that Congress intended, whether wisely or not, to punish the undifferentiated

possession or receipt of mult iple firearms in violation of either section 1202(a) or section 922(h) no

more severely than the possession or receipt of a single firearm

... unl e ss they were received at

different times or stored in separate places." I d. 628 F.2d at 352. 2 But no one has ever suggested

that Congress lacks the constitutional power to impose a greater sentence for two firearms received

in a single transaction contrary to section 922(g)(1) than for one so received. 3 Relatedly, G rady does

not apply to multiple punishments imposed in a single prosecution. This is implicit in the language

of the opinion, which goes to some pains to distinguish between mult iple and single prosecutions, to

emphasize the greater, independent concerns posed by the former, and to raise no question as to the

viabilit y of Blockburger in the single prosecution context. 4 So far as we are aware every circuit courtrehearse its presentation of proof, thus increasing the risk of an erroneous

conviction for one or more of the offenses charged.... Even when a State can

bring multiple charges against an individual under Blockburger, a tremendous

additional burden is placed on that defendant if he must face each of the charges in

a separate proceeding.

"Because of these independent concerns, we have not relied exclusively on

the Blockburger

test to vindicate the Double Jeopardy Clause's protection against

multiple prosecutions." Id. 110 S.Ct. at 2090–92 (footnotes om itted). that has spok en t o t he problem has expressed the view that G rady is limit ed to successive

prosecutions. S ee United States v. Ortiz–Alarcon, 917 F.2d 651, 653–54 (1st Cir.1990); U nited

States v. Maldonado–Rivera, 922 F.2d 934, 981 (2d Cir.1990); United States v. Luskin, 926 F.2d

372, 377 (4th Cir.1991); U nited States v. Sammons, 918 F.2d 592, 604–5 n. 21 (6th Cir.1990);

United States v. Barrett, 933 F.2d 355, 359–60 (6th Cir.1990); U nited States v. McKinney, 919 F.2d

405, 417 n. 13 (7th Cir.1990). S ee also Heaton v. Nix, 924 F.2d 130, 133–34 (8th Cir.1991); U nited

States v. Edmond, 924 F.2d 261, 269 (D.C.Cir.1991). We have not previously spoken to this issue,

other than to note and reserve it. S ee Taylor v. Whitley, 933 F.2d 325, 328–29 n. 6 (5th Cir.1991);

Browner, 937 F.2d at 171 n. 10. We now join the other circuits and hold that G rady le aves

undisturbed the prior law of double jeopardy as applied in the context of mult iple punishments

imposed in a single prosecution. Accordingly, Grady is inapplicable here.

Parker's sentence to consecutive terms on counts one and three was lawful and not contrary

to the double jeopardy clause, as the district court correctly held. Parker's complaint on appeal

respecting ineffective assistance of counsel is only "that counsel failed to object to the imposition of

two separate sentences on double jeopardy grounds." Because Parker's sentence was lawful and not

subject to any double jeopardy objection, counsel was not ineffective for failing to so object, and

Parker could not have been prejudiced by that failure. Consequently, Parker presents no basis for

reversal of the district court's det ermination that he was not entitled to relief on his ineffective

assistance of counsel claim. S trickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).Accordingly, the district court's judgment denying Parker section 2255 relief is

AFFIRMED.