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No. 94-8769. Argued November 27, 1995-Decided March 27, 1996

A jury found petitioner guilty of one count of participating in a conspiracy to distribute controlled substances in violation of 21 U. S. C. § 846 and one count of conducting a continuing criminal enterprise (CCE) "in concert" with others in violation of § 848. The "in concert" element of his CCE offense was based on the same agreement as the § 846 conspiracy. The District Court entered judgment of conviction on both counts and imposed a sentence of life imprisonment without possible release on each, the sentences to be served concurrently. Pursuant to 18 U. S. C. § 3013, it also ordered petitioner to pay a special assessment of $50 on each count. The Seventh Circuit affirmed, relying on Jeffers v. United States, 432 U. S. 137, to reject petitioner's contention that his convictions and concurrent life sentences impermissibly punished him twice for the same offense.

Held: The District Court erred in sentencing petitioner to concurrent life sentences on the § 846 and § 848 counts. Pp. 297-307.

(a) It is presumed that a legislature does not intend to impose two punishments where two statutory provisions proscribe the "same offense." The test for determining whether there are two offenses is whether each of the statutory provisions requires proof of a fact which the other does not. Blockburger v. United States, 284 U. S. 299, 304. This Court has often concluded that two statutes define the "same offense" where one is a lesser included offense of the other. For the reasons set forth in Jeffers, 432 U. S., at 149-150 (plurality opinion); id., at 158, 159, n. 5 (dissenting opinion), and particularly because the plain meaning of § 848's "in concert" phrase signifies mutual agreement in a common plan or enterprise, the Court now resolves definitively that a guilty verdict on a § 848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of § 846. Conspiracy is therefore a lesser included offense of CCE. Pp. 297-300.

(b) The Court rejects the Government's contention that the presumption against multiple punishments does not invalidate either of petitioner's convictions because the sentence on the second one was concurrent. That conviction amounts to a second punishment because a $50 special assessment was imposed on it. Cf. Ray v. United States, 481 U. S. 736 (1987) (per curiam). Even if the assessment were ignored, the force ofcralaw


the Government's argument would be limited by Ball v. United States, 470 U. S. 856, 861-865, in which the Court concluded that Congress did not intend to allow punishment for both illegally "receiving" and illegally "possessing" a firearm; held that the only remedy consistent with the congressional intent was to vacate one of the underlying convictions as well as the concurrent sentence based upon it; and explained that the second conviction does not evaporate simply because of its sentence's concurrence, since it has potential adverse collateral consequencese. g., delay of parole eligibility or an increased sentence under a recidivist statute for a future offense-that make it presumptively impermissible to impose. Although petitioner did not challenge the $50 assessment below, the fact that § 3013 required its imposition renders it as much a collateral consequence of the conspiracy conviction as the consequences recognized by Ball. Pp.301-303.

(c) Also rejected is the Government's argument that the presumption against multiple punishments is overcome here because Congress has clearly indicated its intent to allow courts to impose them. Support for that view cannot be inferred from the fact that this Court's Jeffers judgment allowed convictions under both §§ 846 and 848 to stand, since those convictions were entered in separate trials, the Court's review addressed only the § 848 conviction, and that conviction was affirmed because the four-Justice plurality decided that Jeffers had waived any right to object, see 432 U. S., at 152-154, and because Justice White took the hereinbefore-rejected position that conspiracy was not a lesser included offense of CCE, see id., at 158 (opinion concurring in judgment in part and dissenting in part). As to this issue, then, the judgment is not entitled to precedential weight because it amounts at best to an unexplained affirmance by an equally divided court. Pp. 303-304.

(d) The Government's argument that Congress intended to allow multiple convictions here to provide a "backup" conviction, preventing a defendant who later successfully challenges his greater offense from escaping punishment altogether, is unpersuasive. There is no reason why this particular pair of greater and lesser offenses should present any novel problem not already addressed by the federal appellate courts, which have uniformly concluded-with this Court's approval, see, e. g., Morris v. Mathews, 475 U. S. 237, 246-247-that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds affecting only the greater offense. Pp.305-307.

(e) Because the Court here adheres to the presumption that Congress intended to authorize only one punishment, one of petitioner's convictions, as well as its concurrent sentence, is unauthorized punishmentcralaw

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