                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT            FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                        Nos. 06-13808 & 06-14877            AUGUST 3, 2007
                         Non-Argument Calendar             THOMAS K. KAHN
                                                               CLERK
                       ________________________

                 D. C. Docket No. 04-00038-CR-OC-10-GRJ

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                   versus

RAMON LUIS GONZALEZ,

                                                     Defendant-Appellant.


                       ________________________

                Appeals from the United States District Court
                     for the Middle District of Florida
                      _________________________

                              (August 3, 2007)

Before TJOFLAT, HULL and FAY, Circuit Judges.

PER CURIAM:
      Ramon Luis Gonzalez, proceeding pro se, appeals, first, the denial of his

motion to dismiss certain counts of his indictment as duplicitous and, second, his

convictions for (1) distributing and possessing with intent to distribute heroin, in

violation of 21 U.S.C. § 841(a)(1); (2) providing a prohibited object – heroin – to an

inmate of a federal prison, in violation of 18 U.S.C. § 1791(a)(1); and

(3) possessing a prohibited object – heroin – as an inmate of a federal prison, in

violation of 18 U.S.C. § 1791(a)(2). Gonzalez argues on appeal that his conviction

under § 841(a)(1) was duplicitous with his convictions under § 1791(a), that his

convictions under § 1791(a)(1) and (2) were duplicitous with each other, and that

his charge under § 841(a)(1) should have been treated as a lesser included offense

of his charge under § 1791(a)(1). For the reasons set forth below, we affirm.

      A federal indictment charged Gonzalez with the above-referenced offenses,

as well as conspiring to distribute and possess with intent to distribute heroin, in

violation of 21 U.S.C. §§ 841(a)(1) and 846. Gonzalez filed a pro se motion to

dismiss his charges under § 1791(a)(1) and (2) as resulting in multiple punishments

for the same offense, in violation of the Double Jeopardy Clause. Gonzalez

likewise filed a pro se motion to dismiss his charges under § 841(a)(1) and

§ 1791(a)(1) and (2), as charging the same offense charged in the conspiracy count.

The government responded to these motions, arguing that none of the counts in the



                                           2
indictment were duplicitous, as each required proof of a fact not required by the

others, pursuant to the test described in Blockburger v. United States, 284 U.S.

299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The district court agreed and denied

Gonzalez’s motions.

      After a trial, a jury convicted Gonzalez of the above-referenced offenses.

The jury could not reach a verdict, however, on the conspiracy charge, and the

district court dismissed this charge on the government’s motion.

      Gonzalez then filed another motion challenging his convictions under

§ 1791(a)(1) and (2) as duplicitous, arguing that these convictions punished him

twice under the same statute for the same conduct. The district court denied

Gonzalez’s motion, reasoning that it had previously denied identical arguments and

that Gonzalez had presented no new facts that merited revisiting the issue.

Gonzalez appealed the district court’s denial.

      After he was sentenced to 36 months’ imprisonment for each of his charges,

with the sentence for his violation of § 1791(a)(1) to be served consecutively to the

sentences for his other violations, Gonzalez also appealed his convictions. Upon

Gonzalez’s motion, the district court consolidated Gonzalez’s two appeals.

      The statutes in question in the instant appeal are § 841(a)(1) and

§ 1791(a)(1) and (2). To support a conviction under § 841(a)(1), the evidence



                                          3
must show that the defendant knowingly and intentionally possessed with the

intent to distribute and dispensed a controlled substance. See 21 U.S.C.

§ 841(a)(1). To support a conviction under § 1791(a)(1), the evidence must show

that the defendant – either an inmate or non-inmate – knowingly and intentionally

dispensed a prohibited object to a federal inmate and thereby violated a statute

and/or prison rule. See 18 U.S.C. § 1791(a)(1); see also United States v. Ponder,

963 F.3d 1506, 1512 (11th Cir. 1992). To support a conviction under § 1791(a)(2),

the evidence must show that the defendant knowingly and intentionally possessed a

prohibited object while he was incarcerated in a federal prison. See 18 U.S.C.

§ 1791(a)(2) and (d)(1).

      The definition of “prohibited object” includes controlled substances, such as

heroin, as well as firearms and currency. 18 U.S.C. § 1791(d)(1). Also according

to § 1791, if a defendant violates § 1791(a) and the violation involves a controlled

substance, such as heroin, his sentence for that violation must be served

consecutively to “any other sentence imposed by any court for an offense

involving such a controlled substance.” 18 U.S.C. § 1791(c). The legislative

history for § 1791 does not explain the legislature’s intent in enacting the

provision. See 18 U.S.C. § 1791.

                                     I. Duplicity



                                           4
      Regarding Gonzalez’s appellate arguments that his convictions were

duplicitous, the Double Jeopardy Clause generally protects defendants “from being

subjected to the hazards of trial and possible conviction more than once for an

alleged offense.” Missouri v. Hunter, 459 U.S. 359, 365, 103 S.Ct. 673, 678, 74

L.Ed.2d 535 (1983). The Supreme Court has explained, however, that in the

context of a single trial the clause also protects defendants from being subjected to

cumulative punishments for a single offense when the legislature did not intend as

much. Id. Thus, it is unconstitutional to indict a defendant on two charges

stemming from one offense absent an indication that Congress intended this

charging scheme, as a conviction on both charges would lead to cumulative

sentences. See id. When an indictment unlawfully charges a single offense in

multiple counts in this manner, it is duplicitous. See United States v. Sirang, 70

F.3d 588, 595 (11th Cir. 1995). We review allegations of duplicity de novo.

United States v. Hassoun, 476 F.3d 1181, 1185 (11th Cir. 2007).

      Our review begins with an inquiry into whether Congress intended to

authorize cumulative punishment when it enacted the criminal statutes in question.

See id. To ascertain Congress’s intention, we look to the legislative history of the

statutory provisions. Id. We also look to the language of the statute. Garfield v.

NDC Health Corp., 466 F.3d 1255, 1266 (11th Cir. 2006). Indeed, we have held



                                          5
that “when a statute speaks with clarity to an issue judicial inquiry into the statute’s

meaning, in all but the most extraordinary circumstance, is finished.” Id.

      In the absence of clear evidence of legislative intent regarding cumulative

punishment, however, our review depends on the test espoused in Blockburger that

“where the same act or transaction constitutes a violation of two distinct statutory

provisions,” cumulative punishment is acceptable if “each provision requires proof

of an additional fact which the other does not.” Hassoun, 476 F.3d at 1185 (citing

Blockburger, 24 U.S. at 304, 52 S.Ct. at 182). In applying this test, we limit our

examination to the elements of the offenses and do not consider “the facts alleged

in the indictment to support the counts nor the ‘practical significance’ of the

theories alleged for each count.” Id. at 1186. If the Blockburger test is satisfied,

there is a rebuttable presumption of congressional intent to authorize cumulative

punishment, such that an indictment is not unlawfully duplicitous. Id. at 1186-87

(holding that the presumption could be rebutted by evidence that Congress

intended otherwise).

                       a. Section 841(a)(1) v. Section 1791(a)

      Specifically regarding Gonzalez’s appellate argument that his conviction

under § 841(a)(1) – for distributing and possessing with intent to distribute heroin

– is duplicitous with his convictions under § 1791(a) – for providing heroin to an



                                           6
inmate and possessing heroin as an inmate, we conclude that these convictions

were not unlawfully duplicitous, per the language of § 1791. See Garfield, 466

F.3d at 1266. Pursuant to the language of the statute, a defendant has not violated

§ 1791(a)(1)’s prohibition of dispensing a controlled substance to an inmate unless

his conduct violates another criminal statute or prison rule. See 21 U.S.C.

§ 1791(a)(1). Thus, this provision contemplates that a defendant’s single act will

violate multiple statutes.

      Moreover, also pursuant to the language of § 1791, when the defendant

violates § 1791(a), either by providing or possessing a controlled substance, his

sentence for that violation must be served consecutively to any other sentence

involving a controlled substance. See 18 U.S.C. § 1791(c). Thus, this provision

also contemplates that a defendant will be convicted and sentenced separately for

violations of multiple statutes. Accordingly, because the language of § 1791

contemplates a situation, such as the instant situation, in which a defendant

simultaneously violated § 841 and § 1791(a) and received consecutive sentences

for these violations, it appears that Congress intended to allow cumulative

punishments under § 841 and § 1791. See Hassoun, 476 F.3d at 1185; Gafield,

466 F.3d at 1266. We hold, therefore, that the district court did not err in

convicting Gonzalez under both § 841(a)(1) and § 1791(a). See Hassoun, 476



                                           7
F.3d at 1185.

                        b. Section 1791(a)(1) v. Section 1791(a)(2)

       Specifically regarding Gonzalez’s appellate argument that his conviction

under § 1791(a)(1) – for providing heroin to an inmate – was duplicitous with his

conviction under § 1791(a)(2) – for possessing heroin as an inmate, we conclude

that these convictions were not unlawfully cumulative, per the Blockburger test,

which is applicable since there is no evidence of Congress’s intent in enacting

§ 1791. See Hassoun, 476 F.3d at 1185; see also 18 U.S.C. § 1791.1 Per this test,

§ 1791(a)(1) and (a)(2) each require proof of a fact not required by the other. See

id. at 1185. A violation of § 1791(a)(1) requires proof that the transferee of the

prohibited object was a federal inmate, which is not required for a violation of

§ 1791(a)(2). See 18 U.S.C. § 1791(a)(1) and (2). A violation of § 1791(a)(2)

requires proof that the defendant was a federal inmate when his conduct occurred,

which is not required by § 1791(a)(1). See id.; Ponder, 963 F.2d at 1512.


       1
          On appeal, Gonzalez argues that the Blockburger test is inapplicable when, as here, a
defendant is charged twice under the same statute. Contrary to Gonzalez’s contention, however,
we have not held that the test is inapplicable to these situations. Rather, in Hassoun, we held
only that our usual purely elemental inquiry should be supplemented with a fact-based analysis
when a defendant is charged with two counts of violating one statutory provision. 476 F.3d at
1185-87. Moreover, Hassoun, unlike here, concerned two charges stemming from the same
conspiracy language and using the same facts. Id. Thus, because we only held we should look
at the facts to determine if the Blockburger test is satisfied and because even this limited holding
is not binding since the instant appeal is distinguishable from Hassoun because it concerns
charges stemming from two substantive provisions and using different facts, the traditional
Blockburger test is appropriate here.

                                                 8
Accordingly, because each of the convictions requires proof of an additional fact, it

appears that cumulative punishments for § 1791(a)(1) and (2) do not violate the

Double Jeopardy Clause. See Hassoun, 476 F.3d at 1185. We hold, therefore, that

the district court did not err in denying Gonzalez’s motion challenging these counts

of his indictment and in convicting Gonzalez under both subsections of § 1791(a).

                                II. Lesser-Included Offense

       Regarding Gonzalez’s appellate argument that his charge under § 841(a)(1)

should have been treated as a lesser-included offense of his charge under

§ 1791(a)(1), a lesser included offense is an offense such that “it is impossible to

commit the greater without having first committed the lesser.” Theriault v. United

States, 434 F.2d 212, 214 (5th Cir. 1970). Stated differently, if all of the elements

of an offense constitute a subset of the elements of another offense, the former

offense should be treated as a lesser included of the latter offense. See id.

       However, we will not correct an error that the defendant failed to raise in the

district court unless (1) the district court did, in fact, err, (2) the error was plain,

(3) the error affected the defendant’s substantial rights, and (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings. United

States v. Kennard, 472 F.3d 851, 858 (11th Cir. 2006), cert. denied, (June 25,

2007) No. 06-10149 (considering a defendant’s argument, raised for the first time



                                             9
on appeal, that the district court gave an erroneous jury instruction).

       We will review Gonzalez’s lesser-included offense argument only for plain

error because the record demonstrates that he raises it for the first time on appeal.

See Kennard, 472 F.3d at 858.2 We conclude that the district court’s charging

scheme was not erroneous. It would be possible to violate § 1791(a)(1) without

having first violated § 841(a)(1), in that a defendant could have dispensed a

prohibited object to a federal inmate without having also dispensed a controlled

substance since the definition of prohibited object includes objects other than

controlled substances. See Theriault, 434 F.2d at 214; 18 U.S.C. § 1791(d)(1).

Also, it is feasible that a defendant could have dispensed heroin without having

first possessed with intent to distribute heroin, in that a defendant could simply

arrange that heroin be given to an inmate. See Theriault, 434 F.2d at 214; 18

U.S.C. § 1791(a)(1).

       Moreover, and perhaps most importantly, because the language of

§ 1791(a)(1) contemplates that a defendant could simultaneously violate both

§ 841(a)(1) and § 1791(a)(1) and be sentenced separately for these violations, as



       2
          On appeal, Gonzalez argues that he raised his lesser-included offense claim at his
sentencing hearing before the district court. Our review reveals, however, that Gonzalez only
raised a markedly different argument at that hearing, namely that the jury should have been
instructed that they could convict Gonzalez of the lesser-included offense of simple possession,
rather than possession with intent to distribute under § 841(a)(1).

                                               10
discussed above, it appears that Congress did not intend for a violation of

§ 841(a)(1) to be a lesser included of a violation of § 1791(a)(1). We hold,

therefore, that the district court did not plainly err in charging Gonzalez’s alleged

violations of § 841(a)(1) and § 1791(a)(1) as principals. See Kennard, 472 F.3d at

858.

                                   III. Conclusion

       Because Gonzalez’s convictions were not duplicitous and because the

district court’s charging scheme was not erroneous, we affirm the district courts’

denial of Gonzalez’s motion and affirm Gonzalez’s convictions.

       AFFIRM.




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