Before BAZELON, Senior Circuit Judge, and McGOWAN and MacKINNON, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Opinion for the Court filed by Circuit Judge MacKINNON. 1979.CDC.235
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON
Upon consideration of appellee's petition for rehearing, of the response thereto, and of the various supplemental memoranda filed by both parties, it is
ORDERED, by the Court, that appellee's petition for rehearing is granted and the judgment of, and opinion for, this Court entered herein on March 28, 1979, are vacated; and it is
FURTHER ORDERED, by the Court, that the Clerk shall enter forthwith a new judgment in accordance with the opinion for the Court on rehearing, filed herein this date.
Opinion on Rehearing. Our unanimous opinion in this case, filed on March 28, 1979, involved concurrent sentences of five years and two years respectively imposed under 18 U.S.C. § 922(g)(1), § 924(a) and 18 U.S.C. App. § 1202(a)(1) for substantially the same single offense. We held that the rule of lenity and the statutory arrangement required that the judgment of conviction resting on § 922(g)(1), § 924(a), should be vacated because it called for more severe punishment than § 1202(a)(1) permitted for the identical offense.
The United States Attorney thereafter filed a Petition for Rehearing because of the pendency in the Supreme Court of U. S. v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755 from the Seventh Circuit. We accordingly held action on the petition in abeyance awaiting the Supreme Court decision. U. S. v. Batchelder, 442 U.S. 114, 99 S. Ct. 2198, 60 L. Ed. 2d 755, 1979 was decided shortly after we received subject petition and we thereafter received supplemental memoranda from the parties that address the petition for rehearing. They analyze the decision in Batchelder and suggest the effect of that decision on the disposition we must make of this case. We begin by granting the Petition for Rehearing and then consider the effect of Batchelder upon our disposition of Girst.
In Batchelder, the accused, a previously convicted felon, was convicted on a single count charging a violation of 18 U.S.C. § 922(h) for "receiving a firearm that had travelled in interstate commerce" and was sentenced under § 924(a) to five years imprisonment. On appeal the Court of Appeals for the Seventh Circuit found an ambiguity between the statute authorizing that sentence and § 1202(a) which provided for a maximum term of two years for substantially identical offenses. The Seventh Circuit then proceeded to direct the replacement of the five year sentence with a two year sentence. 581 F.2d at 636. On review in the Supreme Court, a unanimous opinion failed to find any ambiguity in the two statutes, or any constitutional issue, and upheld the validity of all the statutes involved and ordered reinstatement of the five year sentence.
In reaching its ultimate conclusion in Batchelder the Supreme Court held that a defendant convicted of a violation of § 922(h) is properly sentenced under § 924(a) even though he also violated § 1202(a) but was not charged thereunder; that the statutes were not ambiguous, there was no implied repeal and no alternative interpretation was fairly presented; that the substantive statutes operate independently of each other; that no rule of law requires that a defendant convicted under 922(h) cannot be sentenced to a term in excess of the maximum term provided by § 1202(a); that the statutes unambiguously specify the offenses and the penalties and are not void for vagueness; that the statutes do not impermissibly delegate legislative responsibility to fix criminal penalties to the Executive Branch; and that the prosecutorial discretion which the statutes place in the United States Attorney is not sufficiently unfettered to violate the Equal Protection or Due Process Clauses because such choices generally rest in prosecutorial discretion and a defendant has no constitutional right to choose between which of two applicable statutes he will be prosecuted or sentenced.
In Batchelder the Supreme Court analyzed the two statutes:
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 "whoever violates any provision" of Title IV, and § 922(h) is patently such a provision. See 18 U.S.C., ch. 44; 82 Stat. 226, 234; S.Rep.No.1097, 90th Cong., 2d Sess., 20-25, 117 (1968). 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 authorized the same maximum prison term as § 924(a). 52 Stat. 1252. 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 (97 S. Ct. 1963, 1966, 52 L. ...