US SUPREME COURT DECISIONS

Respondent was found guilty of violating 18 U.S.C. § 922(h), which is part of Title IV of the Omnibus Crime Control and Safe Streets Act of 1968 (Act). That provision prohibits previously convicted felons from receiving a firearm that has traveled in interstate commerce. The District Court sentenced respondent 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 remanded for resentencing. Noting that the substantive elements of § 922(h) and 18 U.S.C.App. § 1202(a), which is contained in Title VII of the Act, are identical as applied to a convicted felon who unlawfully receives a firearm, the court interpreted the Act to allow no more than the 2-year maximum sentence provided by § 1202(a).

Held: A defendant convicted of violating § 922(h) is properly sentenced under § 924(a) even though his conduct also violates § 1202(a). Pp. 442 U. S. 118-126.

(a) Nothing in the language, structure, or legislative history of the Act suggests that, because of the overlap between §§ 922(h) and 1202(a), a defendant convicted under § 922(h) may be imprisoned for no more than the maximum term specified in § 1202(a). Rather, each substantive statute, in conjunction with its own sentencing provision, operates independently of the other. Pp. 442 U. S. 118-121.

(b) The Court of Appeals erroneously relied on three principles of statutory interpretation in construing § 1202(a) to override the penalties authorized by § 924(a). The doctrine that ambiguities in criminal statutes must be resolved in favor of lenity is not applicable here, since there is no ambiguity to resolve. Nor can § 1202(a) be interpreted as implicitly repealing § 924(a) whenever a defendant's conduct might violate both sections. Legislative intent to repeal must be manifest in the "positive repugnancy between the provisions.'" United States v. Borden Co., 308 U. S. 188, 308 U. S. 199. In this case, 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, since this principle applies only when an alternative interpretation is fairly possible from the language of the statute. There is simply no basis in chanrobles.com-red

Page 442 U. S. 115

the Act for reading the term "five" in § 924(a) to mean "two." Pp. 442 U. S. 121-122.

(c) The statutory provisions at issue are not void for vagueness, because they unambiguously specify the activity proscribed and the penalties available upon conviction. 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 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. P. 442 U. S. 123.

(d) Nor are the statutes unconstitutional under the equal protection component or Due Process Clause of the Fifth Amendment on the theory that they allow the prosecutor unfettered discretion in selecting which of two penalties to apply. A prosecutor's discretion to choose between §§ 922(h) and 1202(a) is not "unfettered"; selectivity in the enforcement of criminal laws is subject to constitutional constraints. Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion. 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. Pp. 442 U. S. 123-125.

(e) The statutes are not unconstitutional as impermissibly delegating to the Executive Branch the Legislature's responsibility to fix criminal penalties. Having clearly informed the courts, prosecutors, and defendants of the permissible punishment alternatives available under each statute, Congress has fulfilled its duty. Pp. 442 U. S. 125-126.

581 F.2d 626, reversed.

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