SENTENCING: Conflicting  Provisions in Statute; Prosecutorial Discretion

UNITED STATES v. Milton Dean BATCHELDER

442 U.S. 114 (1979)

Mr. Justice MARSHALL delivered the opinion of the Court.

At issue in this case are two overlapping provisions of the Omnibus Crime Control and Safe Streets Act of 1968 (Omnibus Act). Both prohibit convicted felons from receiving firearms, but each authorizes different maximum penalties. We must determine whether a defendant convicted of the offense carrying the greater penalty may be sentenced only under the more lenient provision when his conduct violates both statutes.

Respondent, a previously convicted felon, was found guilty of receiving a firearm that had traveled in interstate commerce, in violation of 18 U.S.C. 922(h). The District Court sentenced him under 18 U.S.C. 924(a) to five years' imprisonment, the maximum term authorized for violation of 922(h).

The Court of Appeals affirmed the conviction but, by a divided vote, remanded for resentencing. The majority recognized that respondent had been indicted and convicted under 922(h) and that 924(a) permits five years' imprisonment for such violations. However, noting that the substantive elements of 922(h) and 18 U.S.C.App. 1202(a) are identical as applied to a convicted felon who unlawfully receives a firearm, the court interpreted the Omnibus Act to allow no more than the 2-year maximum sentence provided by 1202(a). In so holding, the Court of Appeals relied on three principles of statutory construction. Because, in its view, the "arguably contradict[ory]" penalty provisions for similar conduct and the "inconclusive" legislative history raised doubt whether Congress had intended the two penalty provisions to coexist, the court first applied the doctrine that ambiguities in criminal legislation are to be resolved in favor of the defendant. Second, the court determined that since 1202(a) was "Congress' last word on the

issue of penalty," it may have implicitly repealed the punishment provisions of 924(a). Acknowledging that the "first two principles cannot be applied to these facts without some difficulty," the majority also invoked the maxim that a court should, if possible, interpret a statute to avoid constitutional questions. Here, the court reasoned, the "prosecutor's power to select one of two statutes that are identical except for their penalty provisions" implicated "important

constitutional protections."

The dissent found no basis in the Omnibus Act or its legislative history for engrafting the penalty provisions of 1202(a) onto 922(h) and 924(a). Relying on "the long line of cases . . . which hold that where an act may violate more than one criminal statute, the government may elect to prosecute under either, even if [the] defendant risks the harsher penalty, so long as the prosecutor does not discriminate against any class of defendants," the dissent further concluded that the statutory scheme was constitutional.

We granted certiorari, and now reverse the judgment vacating respondent's 5-year prison sentence.

This Court has previously noted the partial redundancy of 922(h) and 1202(a), both as to the conduct they proscribe and the individuals they reach. However, we find nothing in the language, structure, or legislative history of the Omnibus Act to suggest that because of this overlap, a defendant convicted under 922(h) may be imprisoned for no more than the maximum term specified in 1202(a). As we read the Act, each substantive statute, in conjunction with its own sentencing provision, operates independently of the other.

Section 922(h), contained in Title IV of the Omnibus Act, prohibits four categories of individuals from receiving "any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Persons who violate Title IV are subject to the penalties provided by 924(a), which authorizes a maximum fine of $5,000 and imprisonment for up to five years. Section 1202(a), located in Title VII of the Omnibus Act, forbids five categories of individuals from "receiv[ing], possess[ing], or transport[ing] in commerce or affecting commerce . . . any firearm." This same section authorizes a maximum fine of $10,000 and imprisonment for not more than two years.

While 922 and 1202(a) both prohibit convicted felons such as petitioner from receiving firearms each Title unambiguously specifies the penalties available to enforce its substantive proscriptions. Section 924(a) applies without exception to "[w]hoever violates any provision" of Title IV, and 922(h) is patently such a provision. Similarly, because Title VII's substantive prohibitions and penalties are both enumerated in 1202, its penalty scheme encompasses only criminal prosecutions brought under that provision. On their face, these statutes thus establish that 924(a) alone delimits the appropriate punishment for violations of �922(h).

That Congress intended to enact two independent gun control statutes, each fully enforceable on its own terms, is confirmed by the legislative history of the Omnibus Act. Section 922(h) derived from 2(f) of the Federal Firearms Act of 1938, 52 Stat. 1251, and 5 of that Act, 52 Stat. 1252, authorized the same maximum prison term as �924(a). Title IV of the Omnibus Act merely recodified with some modification this "carefully constructed package of gun control legislation," which had been in existence for many years. Scarborough v. United States, 431 U.S. 563, 570.

By contrast, Title VII was a "last-minute" floor amendment, "hastily passed, with little discussion, no hearings, and no report." United States v. Bass, at 344, and n.11. And the meager legislative debates involving that amendment demonstrate no intention to alter the terms of Title IV. Immediately before the Senate passed Title VII, Senator Dodd inquired whether it would substitute for Title IV. Senator Long, the sponsor of the amendment, replied that 1202 would "take nothing from" but merely "add to" Title IV. 114 Cong.Rec. 14774 (1968). Similarly, although Title VII received only passing mention in House discussions of the bill, Representative Machen made clear that the amendment would "complement . . . the gun-control legislation contained in title IV." Had these legislators intended to pre-empt Title IV in cases of overlap, they presumably would not have indicated that the purpose of Title VII was to complement Title IV.⁶ These discussions, together with the language and structure of the Omnibus Act, evince Congress' clear understanding that the two Titles would be applied independently.

In construing 1202(a) to override the penalties authorized by 924(a), the Court of Appeals relied, we believe erroneously, on three principles of statutory interpretation. First, the court invoked the well-established doctrine that ambiguities in criminal statutes must be resolved in favor of lenity. Although this principle of construction applies to sentencing as well as substantive provisions, in the instant case there is no ambiguity to resolve. Respondent unquestionably violated 922(h), and 924(a) unquestionably permits five years' imprisonment for such a violation. That 1202(a) provides different penalties for essentially the same conduct is no justification for taking liberties with unequivocal statutory language. By its express terms, 1202(a) limits its penalty scheme exclusively to convictions obtained under that provision. Where as here, "Congress has conveyed its purpose clearly, . . . we decline to manufacture ambiguity where none exists." United States v. Culbert, 435 U.S., at 379.

Nor can 1202(a) be interpreted as implicitly repealing 924(a) whenever a defendant's conduct might violate both Titles. For it is "not enough to show that the two statutes produce differing results when applied to the same factual situation." Radzanower v. Touche Ross & Co., 426 U.S. 148, 155. Rather, the legislative intent to repeal must be manifest in the " 'positive repugnancy between the provisions.' " United States v. Borden Co., 308 U.S. 188, 199. In this case, however, the penalty provisions are fully capable of coexisting because they apply to convictions under different statutes.

Finally, the maxim that statutes should be construed to avoid constitutional questions offers no assistance here. This "'cardinal principle' of statutory construction . . . is appropriate only when [an alternative interpretation] is 'fairly possible' " from the language of the statute. Swain v. Pressley, 430 U.S. 372, 378 n.11. We simply are unable to discern any basis in the Omnibus Act for reading the term "five" in 924(a) to mean "two."

In resolving the statutory question, the majority below expressed "serious doubts about the constitutionality of two statutes that provide different penalties for identical conduct." Specifically, the court suggested that the statutes might (1) be void for vagueness, (2) implicate "due process and equal protection interest[s] in avoiding excessive prosecutorial discretion and in obtaining equal justice," and (3) constitute an impermissible delegation of congressional authority. We find no constitutional infirmities.

It is a fundamental tenet of due process that "[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U.S. 451, 453. A criminal statute is therefore invalid if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." United States v. Harriss, 347 U.S. 612, 617. So too, vague sentencing provisions may post constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute

The provisions in issue here, however, unambiguously specify the activity proscribed and the penalties available upon conviction. That this particular conduct may violate both Titles does not detract from the notice afforded by each. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.

This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. Whether to prosecute and what charge to file or bring before a grand jury are

decisions that generally rest in the prosecutor's discretion.

The Court of Appeals acknowledged this "settled rule" allowing prosecutorial choice. Nevertheless, relying on the dissenting opinion in Berra v. United States, 351 U.S. 131, the court distinguished overlapping statutes with identical standards of proof from provisions that vary in some particular. In the court's view, when two statutes prohibit "exactly the same conduct," the prosecutor's "selection of which of two penalties to apply" would be "unfettered." Because such prosecutorial discretion could produce "unequal justice," the court expressed doubt that this form of legislative redundancy was constitutional. We find this analysis factually and legally unsound.

Contrary to the Court of Appeals' assertions, a prosecutor's discretion to choose between 922(h) and 1202(a) is not "unfettered." Selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints. And a decision to proceed under 922(h) does not empower the Government to predetermine ultimate criminal sanctions. Rather, it merely enables the sentencing judge to impose a longer prison sentence than 202(a) would permit and precludes him from imposing the greater fine authorized by 1202(a). More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when

choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution neither is he entitled to choose the penalty scheme under which he will be sentenced.

Approaching the problem of prosecutorial discretion from a slightly different perspective, the Court of Appeals postulated that the statutes might impermissibly delegate to the Executive Branch the Legislature's responsibility to fix criminal penalties. We do not agree. The provisions at issue plainly demarcate the range of penalties that prosecutors and judges may seek and impose. In light of that specificity, the power that Congress has delegated to those officials is no broader than the authority they routinely exercise in enforcing the criminal laws. Having informed the courts, prosecutors, and defendants of the permissible punishment alternatives available under each Title, Congress has fulfilled its duty.

Accordingly, the judgment of the Court of Appeals is

Reversed.