USA. v. Studifin, 00-4012

• Decision Date: 04 December 2000
• Docket Number: No. 00-4012,00-4012
• Citation: 240 F.3d 415
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CORNELIUS DOUGLAS STUDIFIN, Defendant-Appellant. . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 415

240 F.3d 415 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CORNELIUS DOUGLAS STUDIFIN, Defendant-Appellant.

No. 00-4012.

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: December 4, 2000.

Decided: February 16, 2001.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge. (CR-99-190) [Copyrighted Material Omitted] COUNSEL: ARGUED: Lisa Kim Lawrence, LAWRENCE & ASSOCIATES, Richmond, Virginia, for Appellant. James Brien Comey, Jr., Assistant United States Attorney, Richmond, Virginia, for Appellee. ON BRIEF: D. Scott Gordon, LAWRENCE & ASSOCIATES, Richmond, Virginia, for Appellant. Helen F. Fahey, United States Attorney, Stephen W. Miller, Assistant United States Attorney, Richmond, Virginia, for Appellee.

Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge Williams wrote the opinion, in which Judge Niemeyer and Judge Traxler joined.

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.S 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. S 924(c) (Count II); and possession of a firearm by a convicted felon in violation of 18 U.S.C.A. S 922(g)(1) (Count III). The district court sentenced Studifin to two 180-month concurrent terms, along with a mandatory minimum 84month term to be served consecutively to his other sentences for his violation of S 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 S 924(c) preclude consecutive terms of imprisonment whenever another provision of law carries a greater mandatory minimum sentence than that imposed under S 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 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 S 924(c) and S 924(e) punish the same conduct and because the 1998 amendments to S 924(c) prohibit the imposition of a mandatory consecutive sentence pursuant to S 924(c) where the mandatory minimum sentence from another provision of law is greater than the mandatory minimum consecutive sentence under S 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 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 S 924(c) constitutes double jeopardy because S 924(c) and S 924(e) punish essentially the same conduct, possession of a firearm during a robbery.¹ We disagree. It is clear that S 924(c) and S 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 F.3d 602, 606 (4th Cir. 1995) (stating elements ofS 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 S 924(c)). Thus, violation of S 922(g) requires proof of an element that S 924(c) does not, i.e., that the defendant was a previously convicted felon; and violation of S 924(c) requires proof of an element that S 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. SS 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, S 4B1.4 (Nov. 1998), and also imposed the statutory mandatory minimum under S 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 S 922(g) andS 924(c) and also received an enhancement under U.S.S.G. S 4B1.4 as an armed career criminal); see also 18 U.S.C.A. S 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. Johnson, 32 F.3d at 86 ("[T]he penalty provision of S 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 S 924(c)(1).").

Studifin points to U.S.S.G. S 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...