As Amended February 15, Feb. 24, and June 8, 1978. Certiorari Dismissed April 17, 1978. See 98 S. Ct. 1631.
Before Van Dusen and Rosenn, Circuit Judges, and Stern,*fn* District judge.
SUPPLEMENTAL OPINION SUR REHEARING
On the government's petition for rehearing, we reconsider our opinion in United States v. Busic, 587 F.2d 577 (3rd Cir. 1978) in light of the Supreme Court's subsequent decision in Simpson v. United States, 435 U.S. 6, 98 S. Ct. 909, 55 L. Ed. 2d 70 (1978). Although we reach the same conclusion, we do so on somewhat different grounds.
In Simpson v. United States, the Court held that a defendant may not receive consecutive sentences under section 924(c) and under the subsection of the Bank Robbery Statute, 18 U.S.C. § 2113(d), which provides for an enhanced penalty where a "dangerous weapon or device" is used.*fn1 The Court noted that "cases in which the Government is able to prove violations of two separate criminal statutes with precisely the same factual showing . . . raise the prospect of double jeopardy," but declined to reach the constitutional question. Instead, it based its decision on the legislative history of section 924(c), on the "policy of lenity" which in close cases counsels against the imposition of additional penalties, and on the principle of statutory construction which gives "precedence to the terms of the more specific statute where a general statute, and a specific statute speak to the same concern . . ." 435 U.S. at 15, 98 S. Ct. at 914.
In light of Simpson, we conclude that we need not have reached the constitutional question in Busic, and accordingly we vacate Part II-B of our opinion. We next address two additional questions raised by Simpson : first, whether as to La Rocca, the government on resentencing is permitted to Elect to proceed under either section 924(c)(1) or section 111; second, whether as to Busic, the Simpson decision prohibits the consecutive sentences under section 111 and section 924(c)(2).
We believe that the Simpson decision did not adopt the approach of the Eighth Circuit in United States v. Eagle, 539 F.2d 1166 (8th Cir. 1976), Cert. denied, 429 U.S. 1110, 97 S. Ct. 1146, 51 L. Ed. 2d 563 (1977), which held that a crime for which the penalty is enhanced by use of a dangerous weapon cannot form the basis of a prosecution under section 924(c)(1). Rather, we believe that under Simpson, the government is free to prosecute under either section, Provided that the defendant is not sentenced under both.*fn2 We are supported in this view by Justice Brennan's closing words in Simpson : "in a prosecution growing out of a single transaction of bank robbery with firearms, a defendant may not be Sentenced under both § 2113(d) and § 924(c)." 435 U.S. 16, 98 S. Ct. at 915 (emphasis supplied). Moreover, we believe that this conclusion is consistent with the Congressional purpose of section 924(c) which, as we noted in our first opinion, was to control and severely penalize the use of firearms.*fn3
We also believe that the Simpson opinion does not proscribe the imposition of consecutive sentences under section 111 and section 924(c)(2). We adhere to the view which we expressed in our earlier opinion, that subsection (2) of section 924 creates an entirely separate offense from that punishable under section 111, since it requires that the government prove the weapon was carried "unlawfully".*fn4 The Court in Simpson faced only with the imposition of consecutive sentences under the bank robbery statute and section 924(c)(1), had no occasion to differentiate between the two subsections of section 924(c). In view of our reading of the different Congressional purposes underlying the two subsections of section 924(c), we believe that Simpson applies only to subsection (1) of section 924(c).
Accordingly, as to Busic, we again affirm the imposition of consecutive sentences under section 924(c)(2) and section 111. La Rocca's case is remanded for resentencing, at which time the government may elect to proceed ...