Rutledge v. U.S.

• Decision Date: 27 March 1996
• Docket Number: 948769
• Citation: 517 U.S. 292,116 S.Ct. 1241,134 L.Ed.2d 419
• Parties: Tommy L. RUTLEDGE, petitioner, v. UNITED STATES
• Court: U.S. Supreme Court

517 U.S. 292

116 S.Ct. 1241

134 L.Ed.2d 419

Tommy L. RUTLEDGE, petitioner,

v UNITED STATES.

No. 94-8769.

Supreme Court of the United States

Argued Nov. 27, 1995.

Decided March 27, 1996.

Syllabus ^*

A jury found petitioner guilty of one count of participating in a conspiracy to distribute controlled substances in violation of 21 U.S.C. § 846 and one count of conducting a continuing criminal enterprise (CCE) "in concert" with others in violation of § 848. The "in concert" element of his CCE offense was based on the same agreement as the § 846 conspiracy. The District Court entered judgment of conviction on both counts and imposed a sentence of life imprisonment without possible release on each, the sentences to be served concurrently. Pursuant to 18 U.S.C. § 3013, it also ordered petitioner to pay a special assessment of $50 on each count. The Seventh Circuit affirmed, relying on Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168, to reject petitioner's contention that his convictions and concurrent life sentences impermissibly punished him twice for the same offense.

Held: The District Court erred in sentencing petitioner to concurrent life sentences on the § 846 and § 848 counts. Pp. __-__.

(a) It is presumed that a legislature does not intend to impose two punishments where two statutory provisions proscribe the "same offense." The test for determining whether there are two offenses is whether each of the statutory provisions requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306. This Court h as often concluded that two statutes define the "same offense" where one is a lesser included offense of the other. For the reasons set forth in Jeffers, 432 U.S., at 149-150, 97 S.Ct., at 2215-2216 (plurality opinion); id., at 158, and 159, n. 5, 97 S.Ct., at 2220, and 2221, n. 5 (dissenting opinion), and particularly because the plain meaning of § 848's "in concert" phrase signifies mutual agreement in a common plan or enterprise, the Court now resolves definitively that a guilty verdict on a § 848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of § 846. Conspiracy is therefore a lesser included offense of CCE. Pp. __-__.

(b) The Court rejects the Government's contention that the presumption against multiple punishments does not invalidate either of petitioner's convictions because the sentence on the second one was concurrent. That conviction amounts to a second punishment because a $50 special assessment was imposed on it. Cf. Ray v. United States, 481 U.S. 736, 107 S.Ct. 2093, 95 L.Ed.2d 693 (1987) (per curiam). Even if the assessment were ignored, the force of the Government's argument would be limited by Ball v. United States, 470 U.S. 856, 861-865, 105 S.Ct. 1668, 1671-1674, 84 L.Ed.2d 740, in which the Court concluded that Congress did not intend to allow punishment for both illegally "receiving" and illegally "possessing" a firearm; held that the only remedy consistent with the congressional intent was to vacate one of the underlying convictions as well as the concurrent sentence based upon it; and explained that the second conviction does not evaporate simply because of its sentence's concurrence, since it has potential adverse collateral consequences—e.g., delay of parole eligibility or an increased sentence under a recidivist statute for a future offense—that make it presumptively impermissible to impose. Although petitioner did not challenge the $50 assessment below, the fact that § 3013 required its imposition renders it as much a collateral consequence of the conspiracy conviction as the consequences recognized by Ball. Pp. __-__.

(c) Also rejected is the Government's argument that the presumption against multiple punishments is overcome here because Congress has clearly indicated its intent to allow courts to impose them. Support for that view cannot be inferred from the fact that this Court's Jeffers judgment allowed convictions under both §§ 846 and 848 to stand, since those convictions were entered in separate trials, the Court's review addressed only the § 848 conviction, and that conviction was affirmed because the four-Justice plurality decided that Jeffers had waived any right to object, see 432 U.S., at 152-154, 97 S.Ct., at 2216-2218, and because Justice White took the hereinbefore-rejected position that conspiracy was not a lesser included offense of CCE, see id., at 158, 97 S.Ct., at 2220 (opinion concurring in judgment in part and dissenting in part). As to this issue, then, the judgment is not entitled to precedential weight because it amounts at best to an unexplained affirmance by an equally divided court. Pp. __-__.

(d) The Government's argument that Congress intended to allow multiple convictions here to provide a "back up" conviction, preventing a defendant who later successfully challenges his greater offense from escaping punishment altogether, is unpersuasive. There is no reason why this particular pair of greater and lesser offenses should present any novel problem not already addressed by the federal appellate courts, which have uniformly concluded—with this Court's approval, see, e.g., Morris v. Mathews, 475 U.S. 237, 246-247, 106 S.Ct. 1032, 1037-1038, 89 L.Ed.2d 187—that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds affecting only the greater offense. Pp. __-__.

(e) Because the Court here adheres to the presumption that Congress intended to author ize only one punishment, one of petitioner's convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense and must be vacated under Ball, 470 U.S., at 864, 105 S.Ct., at 1673. P. __.

40 F.3d 879 (C.A.7 1994), reversed and remanded.

STEVENS, J., delivered the opinion for a unanimous Court.

On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit.

Barry Levenstam, Chicago, IL, for petitioner.

James A. Feldman, Washington, DC, for respondent.

Justice STEVENS delivered the opinion of the Court.

A jury found petitioner guilty of participating in a conspiracy to distribute controlled substances in violation of 84 Stat. 1265, as amended, 21 U.S.C. § 846 and of conducting a continuing criminal enterprise (CCE) in violation of § 848. The "in concert" element of his CCE offense was based on the same agreement as the § 846 conspiracy. The question presented is whether it was therefore improper for the District Court to sentence him to concurrent life sentences on the two counts.

I

Petitioner organized and supervised a criminal enterprise that distributed cocaine in Warren County, Illinois, from 1988 until December 1990, when he was arrested by federal agents. He was charged with several offenses, of which only Count One, the CCE charge, and Count Two, the conspiracy charge, are relevant to the issue before us.

Count One alleged that during the period between early 1988 and late 1990, petitioner violated § 848 ¹ by engaging in a continuing criminal enterprise that consisted of a series of unlawful acts involving the distribution of cocaine.² The count alleged that these actions were undertaken "in concert with at least five (5) other persons," that petitioner supervised those other persons, and that he obtained substantial income from the continuing series of violations. App. 2-3.

Count Two separately alleged that during the same period, petitioner violated 21 U.S.C. § 846 ³ by conspiring with four codefendants and others to engage in the unlawful distribution of cocaine. The count alleged that each of the conspirators had furthered the conspiracy by performing an overt act involving the delivery, purchase, or distribution of cocaine. App. 3-5.

After a 9-day trial, a jury found petitioner guilty on all counts. The trial court entered judgment of conviction on both Count One and Count Two and imposed a sentence of life imprisonment without possible release on each count, the sentences to be served concurrently. Id., at 8-10. Pursuant to 18 U.S.C. § 3013, petitioner was also ordered to pay a special assessment of $50 on each count.

On appeal, petitioner contended in a pro se supplemental brief that even though the life sentences were concurrent, entering both convictions and sentences impermissibly punished him twice for the same offense. The Court of Appeals for the Seventh Circuit accepted the premise of his argument, namely that the conspiracy charge was a lesser included offense of the CCE charge. 40 F.3d 879, 886 (1994). The Court of Appeals nonetheless affirmed his convictions and sentences. Relying on its earlier decision in United States v. Bond, 847 F.2d 1233, 1238 (C.A.7 1988), and our decision in Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977), it held that convictions and concurrent sentences may be imposed for conspiracy and CCE, "provided the cumulative punishment does not exceed the maximum under the CCE act." 40 F.3d, at 886.

The decision of the Seventh Circuit is at odds with the practice of other Circuits. Most federal courts that have confronted the question hold that only one judgment should be entered when a defendant is found guilty on both a CCE count and a conspiracy count based on the same agreements.⁴ The Second and Third Circuits have adopted an intermediate position, allowing judgment to be entered on both counts but permitting only one sentence rather than the concurrent sentences allowed in the Seventh Circuit.⁵ We granted certiorari to resolve the conflict. --- U.S. ----, 115 S.Ct. 2608, 132 L.Ed.2d 852 (1995).

II

Courts may not "prescrib[e] 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); Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). In accord with...