United States v. Pete Hernandez , 591 F.2d 1019 ( 1979 )

ALVIN B. RUBIN, Circuit Judge:

Acting jointly with a confederate, the defendant Pete Hernandez, sold heroin on a single occasion to two undercover agents. The defendant was never shown to have had actual possession of the controlled substance but constructive control during the course of the transaction was proved by the acts of his co-defendant. He was convicted both of possession with intent to distribute and distribution of heroin in violation of the same statute, 21 U.S.C. § 841(a)(1). We here review the validity of the imposition on him of consecutive sentences of imprisonment for ten years and special parole terms for twenty years¹ on each count.

Hernandez appealed his conviction, asserting that the evidence was insufficient to sustain a conviction for possession, and that he should not receive two sentences for committing only one offense. A panel of this court affirmed the conviction and sentences. United States v. Hernandez, 5 Cir. 1978, 580 F.2d 188. Having voted to review the case en banc, we now affirm the conviction, but vacate one of the sentences.

The panel opinion fully reviews the evidence presented at the trial. For present purposes, we merely note that all of the evidence related to a single transaction during which Hernandez and his co-defendant sold heroin to two undercover agents. The panel concluded that there was sufficient evidence to convict Pete Hernandez of possession of heroin, because the actual possession by his co-defendant, Pepe Acosta Hernandez,² was constructively his. 580 F.2d at 189. See also United States v. Stephenson, 5 Cir. 1973, 474 F.2d 1353, 1355. The panel affirmed the two sentences on the basis of precedents set by other panels of the court; however, reviewing both what it believed to be the incorrect results reached in our own decisions and the contrary conclusions of every other circuit that had considered the problem, it noted that, were it considering the issue ab initio, it would have decided the question differently. 580 F.2d at 190.

The panel followed United States v. Costello, 5 Cir. 1973, 483 F.2d 1366, as applied in United States v. Horsley, 5 Cir. 1975, 519 F.2d 1264, cert. denied, 1976, 424 U.S. 944, 96 S.Ct. 1413, 47 L.Ed.2d 350. In Costello, separate convictions for possession of LSD under 21 U.S.C. § 844(a) and distribution under 21 U.S.C. § 841(a)(1) were affirmed. The Costello court found that, under the “different evidence” test,³ the facts showed that the possession and distribution of LSD were separate offenses. In Horsley, the court cited Costello to support its holding that the offenses of possession with intent to distribute and distribution of hashish oil did not merge under 21 U.S.C. § 841(a)(1). The panel declined to limit Costello and Horsley to the propriety of separate convictions rather than separate sentences because the issue was not raised in those cases.

The statute involved is succinct:

(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance . .

21 U.S.C. § 841(a)(1).

The present case requires us solely to consider the intent of Congress in enacting this provision: did it intend to make a single delivery of narcotics punishable as two separate offenses — one, possession with intent to distribute and the other, the actual distribution — or did it define alternative offenses, one requiring proof of fewer facts than the other? The legislative history is silent on this point. The other circuits that have considered this problem have uniformly refused to permit double punishment for violation of these two phrases of Section 841(a)(1) in a single transaction. The Fourth⁴ and Ninth⁵ Circuits have proscribed consecutive sentences in cases where the possession with intent to distribute and distribution of the controlled substance were both proved by evidence of a single transaction. The Sixth⁶ and Tenth⁷ Circuits have even proscribed separate concurrent sentences. The Eighth Circuit, while not faced with exactly the same issue as the other courts, has held that simple possession under 21 U.S.C. § 844(a) is a lesser included offense of distribution under § 841(a)(1).⁸ No case has been cited to indicate that any court has taken the same approach as this circuit.

The divination of congressional intent begins with cases involving other offenses. In Bell v. United States, 1955, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905, the Court reversed the defendant’s consecutive sentences on two counts of violating the Mann Act, 18 U.S.C. § 2421, where two women had been transported at one time. The Court recognized that separate convictions would be proper if Congress so intended, but found that the congressional purpose was left unclear in this regard. A principle of lenity was declared:

When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or anti-social conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. . . . [DJoubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present case furnishes. (Emphasis supplied.)

349 U.S. at 83-84, 75 S.Ct. at 622, 99 L.Ed. at 910-11.

In Prince v. United States, 1957, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 the Court held that consecutive sentences were improper on separate counts brought under 18 U.S.C. § 2113 of bank robbery and entering a bank with intent to commit a felony. The Court relied in part on the congressional history showing the reason for adding an additional offense to the bank robbery statute and the absence of any evidence of an intention to pyramid the penalties. See also Heflin v. United States, 1959, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (applying the principle of lenity). Compare Milanovich v. United States, 1961, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773.⁹ No historical clues, however, can be found with respect to the controlled substances statute.

However, we are guided by the policies set forth in Bell, supra, and, at least to some degree renewed in Prince, supra. The sentence for possession with intent to distribute combined with the consecutive sentence for distribution imposes double punishment for conduct that, under the facts of this case, merges into a single offense. The evidence of the sale was relied upon to prove both Hernandez’s constructive possession of the heroin and his intention to distribute it. There was no evidence of Pete’s possession of a controlled substance with intent to distribute it apart from the evidence of the actual sale. When the intent to distribute was executed by a successful sale, the possession with intent to do so merged into the completed offense. See United States v. Curry, 4 Cir. 1975, 512 F.2d 1299, 1306, cert. denied, 423 U.S. 832, 96 S.Ct. 55, 46 L.Ed.2d 50.

Obviously, our opinion does not concern the situation where there is separate evidence of possession with intent to distribute and evidence of distribution in one or more different transactions.¹⁰ The issue today considered is narrow, and we decide no more than is necessary to carry out what we perceive to be congressional intent in the specific circumstances before us.

For these reasons, we affirm the conviction but remand the case to the trial court for resentencing.

AFFIRMED and REMANDED.

1 . The panel opinion incorrectly stated that special parole terms of two years were imposed on each count.

2 . The panel opinion mistakenly identified Pepe Acosta Hernandez as the brother of Pete Hernandez.

3 . The different evidence test was defined by the Supreme Court in Blockburger v. United States, 1932, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309:

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 an additional fact which the other does not.

Accord, Gore v. United States, 1958, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405; Hattaway v. United States, 5 Cir. 1968, 399 F.2d 431.

4 . United States v. Curry, 4 Cir. 1975, 512 F.2d 1299, cert. denied, 423 U.S. 832, 96 S.Ct. 55, 46 L.Ed.2d 50; United States v. Atkinson, 4 Cir. 1974, 512 F.2d 1235.

5 . United States v. Oropeza, 9 Cir. 1977, 564 F.2d 316, cert. denied, 1978, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788.

6 . United States v. Stevens, 6 Cir. 1975, 521 F.2d 334. See also the excellent discussion by Judge Feikens in United States v. Nichols, E.D.Mich.1975, 401 F.Supp. 1377.

7 . United States v. Olivas, 10 Cir. 1977, 558 F.2d 1366, cert. denied, 434 U.S. 866, 98 S.Ct. 203, 54 L.Ed.2d 142.

8 . United States v. Howard, 8 Cir. 1974, 507 F.2d 559.

9 . We do not deal here with the violation of separate statutes, the issue involved in Blockburger v. United States, 1932, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 and in Gore v. United States, 1958, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405, but with the interpretation of two phrases in one sentence of a single law. In Gore the Court said, in distinguishing Bell v. United States, 1955, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905:

It is one thing for a single transaction to include several units relating to proscribed conduct under a single provision of a statute. It is a wholly different thing to evolve a rule of lenity for three violations of three separate offenses created by Congress at three different times, all to the end of dealing more and more strictly with, and seeking to throttle more and more by different legal devices, the traffic in narcotics.

357 U.S. at 391, 78 S.Ct. at 1284, 2 L.Ed.2d at 1409.

10 . Nor does this opinion reach a simultaneous prosecution for simple possession, 21 U.S.C. § 844(a), and distribution, 21 U.S.C. § 841(a)(1). See notes 3 and 9, supra.