United States v. Josh Michael Blocker, & Lavell Rondell Johnson, 802 F.2d 1102 (9th Cir. 1986). · Go Syfert
United States v. Josh Michael Blocker, & Lavell Rondell Johnson, 802 F.2d 1102 (9th Cir. 1986). Cases Citing This Book View Copy Cite
32 citation events (3 in the last 25 years) across 6 distinct courts.
Strongest positive: United States v. Battle (ca10, 2002-05-08)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 25 distinct citers.
discussed Cited as authority (rule) United States v. Battle
10th Cir. · 2002 · confidence medium
This circuit’s conclusion that § 924(c)(1) mandates a consecutive sentence for the use of a firearm in the commission of a violent crime is supported by the Ninth Circuit’s opinion in United States v. Blocker, 802 F.2d 1102, 1105 (9th Cir.1986).
discussed Cited as authority (rule) United States v. Ragland
6th Cir. · 2001 · confidence medium
United States v. Broce, 488 U.S. 563, 575-76 , 109 S.Ct. 757, 765-66 , 102 L.Ed.2d 927 (1989); United States v. Pollen, 978 F.2d 78, 84 (3rd Cir.1992); United States v. Blocker, 802 F.2d 1102, 1103 (9th Cir.1986); but see Harris, 959 F.2d at 251 n. 2 (finding the double jeopardy issue founded on multiplicity question was waived but failing to address Broce and its progeny).
discussed Cited as authority (rule) United States v. Gunther Thimm
9th Cir. · 1996 · confidence medium
United States v. Cannizzaro, 871 F.2d 809 (9th Cir.1989); United States v. Blocker, 802 F.2d 1102, 1103 (9th Cir.1986). 18 We need not reach Thimm's contention that his sentence constitutes impermissible double counting under the Guidelines, as defined in United States v. Alexander, 48 F.3d 1477, 1492 (9th Cir.1993) ("Impermissible double counting occurs only when 'one part of the Guidelines is applied to increase a defendant's punishment on account of a kind of harm that has already been fully accounted for by application of another part of the Guidelines.' ").
cited Cited as authority (rule) United States v. Detrara Howard, United States of America v. Detrara Howard
9th Cir. · 1995 · confidence medium
United States v. Blocker, 802 F.2d 1102, 1105 (9th Cir. 1986).
discussed Cited as authority (rule) United States v. Carlos Gregorio Martinez, AKA Carlos Martinez Estrada
9th Cir. · 1995 · confidence medium
Requiring an independent statement of intent in every substantive statute would contradict United States v. Blocker, 802 F.2d 1102, 1104-05 (9th Cir.1986), in which we held that Congress intended defendants to be convicted under the armed bank robbery statute, 18 U.S.C. § 2113 (d), and section 924(c)(1) even though the bank robbery statute was enacted after and was more specific than section 924(c)(1).
discussed Cited as authority (rule) United States v. Jomar Michlin, United States of America v. Rahsaan Walker
9th Cir. · 1994 · confidence medium
United States v. Cannizzaro, 871 F.2d 809, 810 (9th Cir.) (court does not violate Double Jeopardy Clause by imposing consecutive sentences under 18 U.S.C. § 2113 (a) and (d) and 18 U.S.C. § 924 (c)), cert. denied, 493 U.S. 895 , 110 S.Ct. 245 , 107 L.Ed.2d 195 (1989); United States v. Browne, 829 F.2d 760, 767 (9th Cir.1987) (same), cert. denied, 485 U.S. 991 , 108 S.Ct. 1298 , 99 L.Ed.2d 508 (1988); United States v. Blocker, 802 F.2d 1102, 1105 (9th Cir.1986) (same).
discussed Cited as authority (rule) United States v. Marvin Vincent Harris
9th Cir. · 1994 · confidence medium
In Blocker, we noted that initially the Supreme Court ruled that, in a prosecution for armed bank robbery, a defendant could not be sentenced under both Sec. 2113(d) and Sec. 924(c) " 'because the Sec. 2113(d) charge merged with the firearms offense for purposes of sentencing.' " Id. at 1104 ( citing Simpson v. United States, 98 S.Ct. 909, 914 (1978)).
discussed Cited as authority (rule) United States v. Heath A. Singleton and Douglas Joseph Aleman
5th Cir. · 1994 · confidence medium
See, e.g., United States v. Lanzi, 933 F.2d 824, 825-26 (10th Cir.1991); United States v. Holloway, 905 F.2d 893, 894-95 (5th Cir.1990); United States v. Harris, 832 F.2d 88 (7th Cir.1987); United States v. Shavers, 820 F.2d 1375, 1377-78 (4th Cir.1987); United States v. Blocker, 802 F.2d 1102, 1104-05 (9th Cir.1986); United States v. Doffin, 791 F.2d 118, 120-21 (8th Cir.), cert. denied, 479 U.S. 861 , 107 S.Ct. 210 , 93 L.Ed.2d 140 (1986). 46 .
discussed Cited as authority (rule) United States v. Ford
D. Maryland · 1994 · confidence medium
See e.g., Shavers, 820 F.2d 1375 ; United States v. Martin, 961 F.2d 161, 163 (11th Cir.), cert. denied, — U.S. -, 113 S.Ct. 271 , 121 L.Ed.2d 200 (1992); United States v. Lanzi, 933 F.2d 824, 825-826 (10th Cir.1991); United States v. Moore, 917 F.2d 215, 228-230 (6th Cir.1990), cert. denied, 499 U.S. 963 , 111 S.Ct. 1590 , 113 L.Ed.2d 654 (1991); United States v. Holloway, 905 F.2d 893, 894-895 (5th Cir.1990); United States v. Harris, 832 F.2d 88 (7th Cir.1987); U.S. v. Blocker, 802 F.2d 1102, 1104-1105 (9th Cir.1986); and United States v. Boffin, 791 F.2d 118 (8th Cir.), cert. denied, 479 …
discussed Cited as authority (rule) Kevyn L. Childs v. United States
9th Cir. · 1993 · confidence medium
See United States v. Cannizzaro, 871 F.2d 809, 810 (9th Cir.), cert. denied, 493 U.S. 895 (1989); United States v. Blocker, 802 F.2d 1102, 1105 (9th Cir.1986). 8 AFFIRMED. * The panel unanimously finds this case suitable for decision without oral argument.
cited Cited as authority (rule) United States v. Pablo C. Moralez, Also Known as \Paul\""
7th Cir. · 1992 · confidence medium
United States v. Blocker, 802 F.2d 1102, 1105 (9th Cir.1986).
discussed Cited as authority (rule) United States v. Michael Holloway
5th Cir. · 1990 · confidence medium
United States v. Harris, 832 F.2d 88, 91 (7th Cir.1987); United States v. Shavers, 820 F.2d 1375, 1377-78 (4th Cir.1987); United States v. Doffin, 791 F.2d 118, 120-121 (8th Cir.), cert. denied, 479 U.S. 861 , 107 S.Ct. 210 , 93 L.Ed.2d 140 (1986); United States v. Blocker, 802 F.2d 1102, 1103 (9th Cir.1986).
cited Cited as authority (rule) United States v. Robert James Walton
9th Cir. · 1989 · confidence medium
United States v. Browne, 829 F.2d 760, 766-67 (9th Cir.1987), cert. denied, 108 S.Ct. 1298 (1988); United States v. Blocker, 802 F.2d 1102, 1104-05 (9th Cir.1986)
cited Cited as authority (rule) United States v. Sanchez-Lopez
9th Cir. · 1989 · confidence medium
United States v. Blocker, 802 F.2d 1102, 1105 (9th Cir.1986).
cited Cited as authority (rule) ca9 1989
9th Cir. · 1989 · confidence medium
United States v. Blocker, 802 F.2d 1102, 1105 (9th Cir.1986).
cited Cited as authority (rule) United States v. Michael A. Cannizzaro
9th Cir. · 1989 · confidence medium
United States v. Blocker, 802 F.2d 1102, 1103 (9th Cir.1986).
discussed Cited as authority (rule) United States v. Morris Stanley Browne (2×) also: Cited "see, e.g."
9th Cir. · 1987 · confidence medium
We rejected this same contention in United, States v. Blocker, 802 F.2d 1102, 1104-05 (9th Cir.1986), and in United States v. Gonzalez, 800 F.2d 895, 897-98 (9th Cir.1986). “[T]he 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 , 103 S.Ct. 673 , 74 L.Ed.2d 535 (1983).
cited Cited "see" United States v. Jeffrey W. Farr
9th Cir. · 1995 · signal: see · confidence high
See United States v. Blocker, 802 F.2d 1102, 1103 (9th Cir.1986); United States v. Karlic, 997 F.2d 564, 570 (9th Cir.1993).
cited Cited "see" United States v. Maria Marin, United States of America v. Maria Marin, United States of America v. Luis Alfredo Avilan Borda
9th Cir. · 1992 · signal: see · confidence high
See United States v. Blocker, 802 F.2d 1102, 1103-04 (9th Cir.1986) (no need to raise duplicitous indictment issue pre-plea in order to attack a duplicitous sentence).
cited Cited "see, e.g." United States v. Watts
7th Cir. · 2003 · signal: see, e.g. · confidence medium
See, e.g., United States v. Hand-ford, 39 F.3d 731, 734 (1994), United States v. Davis, 306 F.3d 398, 418 (6th Cir.2002), and United States v. Blocker, 802 F.2d 1102, 1102 (9th Cir.1986).
discussed Cited "see, e.g." ca9 1996
9th Cir. · 1996 · signal: see also · confidence medium
We have made it clear that sentences for multiple convictions under § 924(c) must run consecutively to each other as well as to "any other term of imprisonment." United States v. Neal, 976 F.2d 601, 602-03 (9th Cir.1992) (quoting 18 U.S.C. § 924 (c)(1)); see also, United States v. Blocker, 802 F.2d 1102, 1104 (9th Cir.1986) (holding that § 924(c) was amended to ensure that persons who commit federal crimes of violence receive a mandatory sentence without the possibility of the sentence being made to run concurrently with that for the underlying offense).
discussed Cited "see, e.g." United States v. Atcheson
9th Cir. · 1996 · signal: see also · confidence medium
We have made it clear that sentences for multiple convictions under § 924(c) must run consecutively to each other as well as to “any other term of imprisonment.” United States v. Neal, 976 F.2d 601, 602-03 (9th Cir.1992) (quoting 18 U.S.C. § 924 (c)(1)); see also, United States v. Blocker, 802 F.2d 1102, 1104 (9th Cir.1986) (holding that § 924(c) was amended to ensure that persons who commit federal crimes of violence receive a mandatory sentence without the possibility of the sentence being made to run concurrently with that for the underlying offense).
discussed Cited "see, e.g." United States v. Miguel Angel Gomez
9th Cir. · 1996 · signal: see, e.g. · confidence low
See, e.g., United States v. Blocker, 802 F.2d 1102 (9th Cir.1986) (holding that double jeopardy does not preclude cumulative punishment under 924(c) and the armed bank robbery statute); United States v. Singleton, 16 F.3d 1419 (5th Cir.1994) (holding that punishment under 924(c) may be imposed cumulatively with punishment under the federal carjacking statute, which requires use of a firearm). 10 We are bound by this precedent to hold that the district court did not err in imposing successive terms of imprisonment under 18 U.S.C. §§ 844 (i) and 924(c).
discussed Cited "see, e.g." UNITED STATES of America, Plaintiff-Appellee, v. Ricardo SCARANO, Defendant-Appellant
9th Cir. · 1996 · signal: see also · confidence medium
"Multiple penalties for a single criminal transaction are not necessarily impermissible where Congress manifests its intent that enhancement of penalties is proper.” United States v. Sanchez-Lopez, 879 F.2d 541, 559 (9th Cir.1989); see also United States v. Blocker, 802 F.2d 1102, 1105 (9th Cir.1986). 6 .
discussed Cited "see, e.g." United States v. Don Stovall and Robert Harlon \Frosty\" Winter"
5th Cir. · 1987 · signal: see also · confidence medium
See United States v. Osunegbu, 822 F.2d 472 , 481 n. 26 (5th Cir.1987); United States v. Bradsby, 628 F.2d 901, 905-06 (5th Cir.1980); see also United States v. Blocker, 802 F.2d 1102, 1103 (9th Cir.1986); United States v. Rosenbarger, 536 F.2d 715, 721-22 (6th Cir.1976), cert. denied, 431 U.S. 965 , 97 S.Ct. 2920 , 53 L.Ed.2d 1060 (1977).
UNITED STATES of America, Plaintiff-Appellee,
v.
Josh Michael BLOCKER, Defendant, and Lavell Rondell Johnson, Defendant-Appellant
85-1333.
Court of Appeals for the Ninth Circuit.
Oct 14, 1986.
802 F.2d 1102
Robert Dondoro, Mark Zanides, Asst. U.S. Attys., San Francisco, Cal., for plaintiff-appellee., Donald Thomas Bergerson, San Francisco, Cal., for defendant-appellant.
Farris, Hall, Brunetti.
Cited by 28 opinions  |  Published
Pinpoint authority: bottom 55%
FARRIS, Circuit Judge:

By indictment handed down May 2, 1985, Lavell R. Johnson was charged with armed bank robbery (18 U.S.C. § 2113(a) and (d)) and possession of a firearm during the commission of a crime of violence (18 U.S.C. § 924(c)). He pleaded guilty on September 3,1985. On October 17,1985, John-' son was adjudged guilty and sentenced to 20 years imprisonment on the bank robbery charge and 5 years imprisonment on the weapons charge, the two sentences to run consecutively.

The district court had jurisdiction under 18 U.S.C. § 3231. Johnson filed a timely notice of appeal on October 21, 1985. This court has jurisdiction pursuant to 28 U.S.C. § 1291. Johnson contends that the imposition of cumulative punishments for violation of § 2113(d) and § 924(c) is constitutionally impermissible. We disagree. Congressional intent is unambiguous. The double jeopardy clause does not prohibit a district court from imposing cumulative sentences for armed bank robbery and possession of a firearm during the commission of a crime of violence.

I

There is no merit to the government’s contention that Johnson’s failure to complain of duplicitous sentencing before the district court precludes consideration of his double jeopardy claim on appeal. Johnson’s failure to challenge the indictment as duplicitous in a pretrial motion under Fed. R.Crim.P. 12(b) does not waive his right to challenge the imposition of multiple sentences. Launius v. United States, 575 F.2d 770, 772 (9th Cir.1978). See also United States v. Bradsby, 628 F.2d 901, 905-06 (5th Cir.1980); United States v. Rosenbarger, 536 F.2d 715, 721-22 (6th Cir. 1976), cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977). Nor did Johnson waive his right to assert a double jeopardy claim by entering a guilty plea. Launius, 575 F.2d at 771. See also United States v. Baugh, 787 F.2d 1131, 1132 (7th Cir.1986) (guilty plea “does not ... waive a claim that an ... indictment, judged on its face, is constitutionally deficient in violation of the double jeopardy clause”); United States v. Broce, 781 F.2d 792, 797 (10th Cir.1986) (en banc) (“a defendant’s plea of guilty to a constitutionally duplicitous charge is not a waiver of that[*1104] defendant’s right to assert a double jeopardy claim”); United States v. Broussard, 645 F.2d 504, 505 (5th Cir.1981) (per curiam) (“entry of a guilty plea does not waive a challenge based on a violation of the double jeopardy clause”). Cf. Menna v. New York, 423 U.S. 61, 63 n. 2, 96 S.Ct. 241, 242 n. 2, 46 L.Ed.2d 195 (1975) (a guilty plea does not waive those claims that “stand in the way of conviction, [even] if factual guilt is validly established”).

II

In 1978, the Supreme Court held that “in a prosecution growing out of a single transaction of bank robbery with firearms, a defendant [could] not be sentenced under both § 2113(d) and § 924(c),” Simpson v. United States, 435 U.S. 6, 16, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1978), “because the § 2113(d) charge merged with the firearms offense for purposes of sentencing.” Id. at 9, 98 S.Ct. at 911. The Court reached this conclusion without addressing the defendant’s contention that the imposition of cumulative penalties for the two crimes violated the constitutional prohibition against double jeopardy. It looked, instead, to the language and legislative history of § 924(c) and concluded that Congress had not “authorized the imposition of the additional penalty of § 924(c) for commission of bank robbery with firearms already subject to enhanced punishment under § 2113(d).” Id. at 12-13, 98 S.Ct. at 911. See also Busic v. United States, 446 U.S. 398, 404, 100 S.Ct. 1747, 1751, 64 L.Ed.2d 381 (1980) (“prosecution and enhanced sentencing under § 924(c) is ... not permissible where the predicate felony statute contains its own enhancement provision”).

As part of the Comprehensive Crime Control Act of 1984, Pub.L. 98-473, 98 Stat. 1837 (1984), Congress amended § (c) “to ensure that all persons who commit Federal crimes of violence, including those crimes set forth in statutes which already provide for enhanced sentences for their commission with a dangerous weapon, receive a mandatory sentence, without the possibility of the sentence being made to run concurrently with that for the underlying offense.” Report of Senate Committee on the Judiciary, S.Rep. No. 225, 98 Cong., 2d Sess. 313 (1983), reprinted in 1984 U.S. Code Cong. & Ad.News 3182, 3491 (footnote omitted). The full text of § 924(c), as amended, is set out in the margin. [1] We are called upon to decide whether, in light of the amendment, Johnson may properly be subjected to cumulative punishment for armed bank robbery (§ 2113(d)) and possession of a firearm during commission of a crime of violence (§ 924(c)).

Where, as here, cumulative sentences are imposed in a single trial, “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). See also Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 2419, 85 L.Ed.2d 764 (1985). In other words, “the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.” Albernaz [*1105] v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981) (Stewart, J., concurring). Statutory analysis and constitutional scrutiny merge into a single inquiry.

Both the plain meaning of amended § 924(c) and the legislative history of the amendment indicate that Congress intended those convicted of violating both § 924(c) and § 2113(d) to receive cumulative sentences. Amended § 924(c) provides, in unambiguous language, that among those to receive a mandatory five-year sentence for possession of a firearm during commission of a crime of violence are those convicted of “a crime of violence which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon.” 18 U.S.C. § 924(c). This mandatory sentence is to be imposed “in addition to the punishment provided for such crime of violence.” Id. Nothing in the language or legislative history of § 924(c) supports Johnson’s contention that Congress intended that a mandatory sentence under § 924(c) be imposed in conjunction with a sentence for bank robbery under § 2113(a), but not in conjunction with a sentence for armed bank robbery under § 2113(d). In fact, the report prepared by the Senate Judiciary Committee in connection with the 1984 amendment of § 924(c) uses a cumulative sentence under § 924(c) and § 2113(d) to illustrate the intended operation of § 924(c): Report of Senate Committee on the Judiciary, S.Rep. No. 225, 98 Cong., 2d Sess. 313-14 (1983), reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3492 (footnote omitted). [2]

[T]he Committee intends that the mandatory sentence under the revised subsection 924(c) be served prior to the start of the sentence for the underlying or any other offense. For example, a person convicted of armed bank robbery in violation of section 2113(a) and (d) and of using a gun in its commission ... would have to serve five years ... less only good time credit for proper behavior in prison, before his sentence for the conviction under section 2113(a) and (d) could start to run.

We are satisfied that § 924(c), as amended, contemplates cumulative punishment of those convicted of armed bank robbery (§ 2113(d)) and possession of a firearm during commission of a crime of violence (§ 924(c)). See United States v. Doffin, 791 F.2d 118, 121 (8th Cir.1986) (“[ajuthorization for cumulative punishment under 18 U.S.C. §§ 2113(d) and 924(c) is clearly indicated in the firearms statute”). See also United States v. Pisani, 787 F.2d 71, 74 (2d Cir.1986). This being the case, our “task of statutory construction is at an end.” Hunter, 459 U.S. at 369,103 S.Ct. at 679. Under the test announced in Block-burger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the double jeopardy clause does not preclude imposition in a single trial of cumulative punishment under § 2113(d) and § 924(c). United States v. Gonzalez, 800 F.2d 895 (9th Cir.1986). See also Hunter, 459 U.S. at 368-69, 103 S.Ct. at 679 (“Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Block-burger ... the trial court ... may impose cumulative punishment ... in a single trial.”).

AFFIRMED.

1

. 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 or device, 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 of violence, be sentenced to imprisonment for five years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for ten years. Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence in which the firearm was used or carried. No person sentenced under this subsection shall be eligible for parole during the term of imprisonment imposed herein.

18 U.S.C. § 924(c) as amended by Comprehensive Crime Control Act of 1984, Pub.L. 98-473, Title II, § 1005(a), 98 Stat. 2138 (Oct. 12, 1984).

2

. "[T]he authoritative source for legislative intent lies in the committee reports on the bill.” Thornburg v. Gingles, — U.S. -, 106 S.Ct. 2752, 2763 n. 7, 92 L.Ed.2d 25 (1986) (citations omitted).