In the
United States Court of Appeals
For the Seventh Circuit

No. 98-4011

Stephen Blacharski,

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.



Appeal from the United States District Court
for the Northern District of Indiana, South Bend
Division.
No. 3:98-CV-41--Robert L. Miller, Jr., Judge.


Argued April 7, 2000--Decided June 1, 2000



  Before Bauer, Easterbrook, and Rovner,
Circuit Judges.

  Bauer, Circuit Judge. In February 1994,
Stephen Blacharski and Robert Winter
attached two cans of starting fluid
(ether) to a pipe bomb constructed by
Winter and John Day. They then threw the
pipe bomb into the broken window of a
car. From two blocks away they watched
the bomb explode. The grand jury returned
a six-count indictment.

  Pursuant to a plea agreement, Blacharski
pled guilty to four of the six counts,
including receiving and possessing an
unregistered destructive device, in
violation of 26 U.S.C. sec. 5841,
unlawfully making a destructive device,
in violation of 26 U.S.C. sec. 5841,
destroying a vehicle by means of
explosive, in violation of 18 U.S.C. sec.
844(i), and carrying an explosive used in
the commission of a felony, in violation
of 18 U.S.C. sec. 844(h). On August 20,
1996, Blacharski was sentenced to 24
months on counts 1, 2, and 3, the
sentences to run concurrently, and to a
term of 60 months for count 4, to run
consecutive to the sentences on counts 1-
3. The sentence for count 4 was later
reduced to 30 months as a result of his
trial testimony in the trial of John O.
Day. As part of the plea agreement,
Blacharski waived his right to appeal or
to contest his sentence or the manner in
which it was determined in any post
conviction proceeding, including a
proceeding under 28 U.S.C. sec. 2255.
Because Blacharski appeals the validity
of the plea agreement, the government
agrees that it may be reviewed on appeal.
Blacharski appeals the district court’s
denial of his motion under sec. 2255 for
ineffective assistance of counsel.

  We review the district court’s denial of
relief under 28 U.S.C. sec. 2255 de novo.
Paters v. United States, 159 F.3d 1043,
1045 (7th Cir. 1998).

  To prove ineffective assistance under
the two-prong test enunciated by the
Supreme Court in Strickland v.
Washington, Blacharski must first show
that his counsel’s performance was
unreasonably deficient. 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); United
States v. Draves, 103 F.3d 1328, 1335
(7th Cir. 1997). We must consider whether
counsel’s acts or omissions fell "outside
the wide range of professionally
competent assistance" such that the
defendant in effect received no
assistance at all. Strickland, 466 U.S.
at 690, 104 S.Ct. at 2066. Even if
Blacharski establishes his counsel was
egregiously deficient, he still must
show, that but for the deficient
performance, the trial would have turned
out differently. Draves, 103 F.3d at
1355.

  Blacharski argues that his plea of
guilty was not knowing and voluntary and
that he was denied effective assistance
of counsel. He contends that his counsel
failed to advise him of a double jeopardy
defense for violations of both sec.
844(h) and the predicate offenses of
violations of 18 U.S.C. sec. 844(i) and
26 U.S.C. sec. 5861.

  The Supreme Court held in Missouri v.
Hunter, 459 U.S. 359, 368 (1982), that
where "a legislature specifically
authorizes cumulative punishment under
two statutes, regardless of whether those
two statutes proscribe the ’same’ conduct
under Blockburger, a court’s task of
statutory construction is at an end and
the prosecutor may seek, and the trial
court or jury may impose, cumulative
punishment under such statutes in a
single trial." If Congress intended to
proscribe cumulative punishments, then
there is no violation of double jeopardy.
Id. Because Congress’ intent is clear,
there is no need to use the test from
Blockburger v. United States, 284 U.S.
299 (1932), which requires that one of
the two statutes at issue requires proof
of a fact which the other does not. The
Blockburger test is used to discern
legislative intent not to override it.
Hunter, 459 U.S. at 368.

  The Eighth Circuit in United States v.
Shriver, 838 F.2d 980, 982 (8th Cir.
1988), determined that the legislative
history clearly establishes Congress’
intent that the crimes of using fire to
commit a felony and the felony itself may
be punished cumulatively. We agree.

  In 1982, Congress amended the Anti-Arson
Act with sec. 844(h) to proscribe the use
of fire in addition to explosives.
Section 844(h) provides: "[w]hoever uses
fire or an explosive to commit any felony
which may be prosecuted in a court of the
United States . . ., shall be subject to
a sentence in addition to the sentence
for the predicate offense." 18 U.S.C.
sec. 844(h). In 1988, Congress changed
the wording of sec. 844(h) to further
make the intent clear. Section 844(h) now
states "[w]hoever uses fire or an
explosive to commit any felony which may
be prosecuted in a court of the United
States . . ., shall, in addition to the
punishment provided for such felony, be
sentenced to imprisonment for 10 years."
Id. Congress also added that the term of
imprisonment imposed under sec. 844(h)
"shall not run concurrently with any
other term of imprisonment including that
imposed for the felony in which the
explosive was used or carried."

  Blacharski argues that sec. 844(h) is a
greater included offense of sec. 844(i)
and the Title 26 charges. These arguments
fail. Section 844(h) was intended to be
used in addition to the predicate offense
not instead of it. Accordingly,
Blacharski’s attorney was not deficient
in failing to raise a double jeopardy
defense. This case fails to meet the
first prong of the Strickland test. The
district court correctly denied the
ineffective assistance claim.

  Affirmed.
