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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 93-3479
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
HEATH A. SINGLETON and DOUGLAS JOSEPH ALEMAN,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
(March 10, 1994)
Before WISDOM, HIGGINBOTHAM, and SMITH, Circuit Judges.
WISDOM, Circuit Judge:
The United States appeals the dismissal on double jeopardy
grounds of a firearms charge brought against two criminal defen-
dants who were also charged with "carjacking". Although we agree
with the district court that the firearms offense is not factually
distinct from the carjacking offense, we hold that Congress has
clearly indicated its intention to impose cumulative punishments.
Therefore, we REVERSE the dismissal and REMAND the case to the
district court with instructions to reinstate the firearms count of
the indictment.

I.
This case arose out of the armed carjacking and murder of
William Mullers in Hammond, Louisiana on November 15, 1992. The
United
States
gives
the
following facts, which the
defendants/appellees in their brief, for purposes of this appeal,
do not contest. On November 15, 1992, defendants Heath Singleton,
his brother George Singleton, and Douglas Joseph Aleman, and also
Stephanie Durr conspired to steal a car from a supermarket parking
lot in Hammond, Louisiana. Aleman was armed with a .38 caliber
pistol and Heath Singleton was armed with a .22 caliber pistol.
The four conspirators saw William Mullers arrive in his red 1991
Nissan Sentra and selected him as their victim. Aleman hijacked
Mullers at gunpoint, ordering him to move over to the passenger
side of his vehicle. Aleman drove Mullers's car to Aleman's home.
The Singleton brothers and Durr followed. After they reached
Aleman's home, Heath Singleton joined Aleman in Mullers's car. The
two of them drove Mullers to an automatic teller machine and forced
him to withdraw two hundred dollars from his bank account. They
then drove to a location west of Hammond. George Singleton and
Durr did not follow. When Aleman, Heath Singleton, and their
captive reached their destination, Aleman shot Mullers three times
in the head, killing him. Heath Singleton shot Mullers once in the
back. Aleman and Heath Singleton then drove Mullers's car to
Singleton's home, where they met George Singleton and Durr and
described what they had just done to Mullers.
2

On January 8, 1993, Aleman and both Singleton brothers were
indicted on federal charges arising out of the events of November
15, 1992. A superseding indictment filed on April 23, 1993 charged
the defendants with: (1) conspiracy to commit armed carjacking,1
(2) the completed carjacking offense,2 and (3) using and carrying
a firearm during and in relation to the commission of a violent
crime.3 Aleman was also charged with a fourth count of attempted
escape from custody.4 George Singleton pleaded guilty to the first
and third counts of the indictment and his case was severed.
Appellees Aleman and Heath Singleton moved to require the
prosecution to elect between counts (2) and (3) on the grounds that
the constitutional principle of double jeopardy barred punishment
for both offenses. The district court agreed and ordered the
firearms count dismissed.5 The United States timely appealed the
dismissal of that count to this Court.6 The question whether the
Fifth Amendment's double jeopardy clause bars prosecution for both
armed carjacking and possession of a firearm in the commission of
a violent crime is one of first impression in this Court.7 We
1 18 U.S.C. � 371.
2 18 U.S.C. � 2119.
3 18 U.S.C. � 924(c).
4 2 Rec. 430.
5 United States v. Singleton, 824 F. Supp. 609 (E.D. La.
1993).
6 18 U.S.C. � 3731.
7 We have uncovered no opinions of other Circuits bearing
directly on this question. The issue has split the district
3

review de novo the district court's legal conclusion that such a
dual prosecution is indeed barred.
II.
A.
Sections 2119 and 924(c) Fail the Blockburger Test
The Fifth Amendment's double jeopardy clause protects a
criminal defendant against, inter alia, "multiple punishments for
the same offense".8 We apply the Blockburger v. United States9 test
to determine whether two different statutes punish the same
offense. Blockburger requires us to compare the two statutes at
issue and ask "whether each provision requires proof of an
additional fact which the other does not".10 If either statute
courts, although a small majority of the reported district court
cases agree with our conclusion that double jeopardy does not bar
cumulative punishment for carjacking and a firearms charge under
18 U.S.C. � 924(c). Cases finding no double jeopardy bar include
United States v. Sabini, --- F. Supp. ---, 1994 WL 31871 (S.D.
Fla. Jan. 19, 1994); United States v. Payne, --- F. Supp. ---,
1994 WL 9503 (S.D. Ohio Jan. 13, 1994); United States v. Zukinta,
830 F. Supp. 418 (E.D. Tenn. 1993); United States v. Harwood, 834
F. Supp. 950 (W.D. Ky. 1993); and United States v. McHenry, 830
F. Supp. 1020 (N.D. Ohio), appeal dism'd, 993 F.2d 1548 (6th Cir.
1993) (table) (dismissing on jurisdictional grounds without
reaching double jeopardy issue). Our own reasoning in this case
most closely resembles that of the Sabini opinion. Cases holding
that double jeopardy bars cumulative punishments for violations
of �� 2119 and 924(c) include United States v. Smith, 831 F.
Supp. 549 (E.D. Va. 1993) (citing the district court's opinion in
this case); and United States v. Moore, 832 F. Supp. 335 (N.D.
Ala. 1993).
8 North Carolina v. Pearce, 395 U.S. 711, 717 (1969),
overruled in part on other grounds, Alabama v. Smith, 490 U.S.
794 (1989).
9 284 U.S. 299 (1932).
10 Id. at 304. The Blockburger "same elements" test is the
only hurdle the prosecution must overcome to avoid a double
4

contains no element not also found in the other statute, the
statutes "fail" the Blockburger test and the defendant may not be
punished under both of them "in the absence of a clear indication
of contrary legislative intent".11 The two statutory offenses need
not be identical to constitute the same offense for double jeopardy
purposes.12 The Blockburger inquiry focuses on the statutory
elements of the offenses,13 not on their application to the facts
of the specific case before the court.14 Thus, the question is not
whether this violation of � 2119 also constituted a violation of
� 924(c), but whether all violations of the former constitute
violations of the latter.
The second count of the indictment against Aleman and Heath
Singleton charged them with carjacking in violation of 18 U.S.C.
� 2119. Section 2119 provides that:
Whoever, possessing a firearm as defined in section 921
of this title, takes a motor vehicle that has been
transported, shipped, or received in interstate or
foreign commerce from the person or presence of another
by force and violence or by intimidation, or attempts to
do so, shall--
(1) be fined under this title or imprisoned not more
than 15 years, or both,
jeopardy bar. See United States v. Dixon, 509 U.S. ---, 113 S.
Ct. 2849, 125 L. Ed. 2d 556 (1993) (rejecting "same conduct" test
of Grady v. Corbin, 495 U.S. 508 (1990)).
11 Whalen v. United States, 445 U.S. 684, 692 (1980).
12 See Brown v. Ohio, 432 U.S. 161, 164 (1977).
13 Iannelli v. United States, 420 U.S. 770, 785 n.17 (1975).
14 See, e.g., United States v. Woodward, 469 U.S. 105, 108
(1985).
5

(2) if serious bodily injury (as defined in section
1365 of this title) results, be fined under this title or
imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or
imprisoned for any number of years up to life, or both.
We read � 2119 to require proof of four elements to convict:
the defendant, (1) while possessing a firearm, (2) took from the
person or presence of another (3) by force and violence or
intimidation (4) a motor vehicle which had moved in interstate or
foreign commerce.15
The third count of the indictment charged Aleman and Heath
Singleton with using or carrying a firearm during a crime of
violence in violation of 18 U.S.C. � 924(c). In pertinent part,
� 924(c) provides:
(1) Whoever, during and in relation to any crime of
violence . . . uses or carries a firearm shall, in
addition to the punishment provided for such crime . . .
be sentenced to imprisonment for five years . . . .
. . .(3) For purposes of this subsection the term "crime
of violence" means an offense that is a felony and--
(A) has as an element the use, attempted use,
or threatened use of physical force against the
person or property of another, or
(B) that by its nature, involves a substantial
risk that physical force against the person or
property of another may be used in the course of
committing the offense.
15 We do not disapprove of the Sabini court's division of
these same facts into six elements. See Sabini, --- F. Supp. at
---, 1994 WL 31871, at *3.
6

The relevant portions of � 924(c) require proof of only two
elements: the defendant (1) used or carried a firearm (2) during
and in relation to a crime of violence.16
We agree with the district court that � 924(c) does not
require the government to prove any fact beyond those required
under � 2119. Every defendant who violates � 2119 necessarily
violates � 924(c). For double jeopardy purposes, the crimes are
not distinct. We shall consider the two elements of � 924(c) in
turn and explain why they will always be satisfied when a defendant
violates � 2119.
1.
"Using or Carrying" A Firearm
Carjacking is a crime only when the defendant has a gun.
Section 2119 requires that a defendant "possess[]" the firearm,
while � 924(c) requires that the defendant "use[] or carr[y]" it.
Given the breadth that the Supreme Court has given to the "use or
carry" requirement of � 924(c),17 however, any defendant who
16 Smith v. United States, 508 U.S. ---, 113 S. Ct. 2050,
2053, 124 L. Ed. 2d 138, 147, reh'g denied, --- U.S. ---, 114 S.
Ct. 13, 125 L. Ed. 2d 765 (1993).
17 A firearm need not be used as a weapon to violate
� 924(c). Smith v. United States upheld a defendant's conviction
for violating � 924(c) when the defendant had merely traded his
gun for cocaine. 508 U.S. at ---, 113 S. Ct. at 2058, 124 L. Ed.
2d at 153 ("the phrase `uses . . . a firearm' is broad enough in
ordinary usage to cover use of a firearm as an item of barter or
commerce").
The Supreme Court's opinion in Smith did not discuss the
term "carry" in � 924(c). Congress, however, must have intended
for that term to be given a similarly broad reading. See S. Rep.
No. 225, 98th Cong., 2d Sess. 314 n.10, reprinted in 1984
7

"possesses" a firearm within the meaning of � 211918 necessarily
"uses or carries" it. Accordingly, anyone who satisfies the first
element of � 2119 also satisfies the first element of � 924(c).
There is nothing manufactured or suspect about the legislative
histories of �� 2119 and 924(c) supporting our conclusion. In
neither statute did Congress attempt to demarcate a boundary
between the terms "possess" and "use or carry". Indeed, in the
legislative histories of both statutes the terms are occasionally
used interchangeably. For instance, the Senate committee report on
the 1984 amendments to � 924(c) refers to "the firearm's use or
possession".19 Senators DeConcini and Pressler both described the
carjacking statute as punishing those who "use" firearms in
carjacking.20
U.S.C.C.A.N. 3182, 3492 n.10 ("Evidence that the defendant had a
gun in his pocket but did not display it, or refer to it, could
nevertheless support a conviction for `carrying' a firearm . . .
.").
18 As discussed below, we do not read � 2119 to authorize
conviction on proof of "mere possession" of the firearm. Rather,
there must be some relation between the possession of the firearm
and the taking of the vehicle. Therefore, the cases the
government cites distinguishing "using or carrying" from "mere
possession" are inapposite. See, e.g., United States v.
Featherston, 949 F.2d 770, 776-77 (5th Cir. 1991), cert. denied,
--- U.S. ---, 112 S. Ct. 1698, 118 L. Ed. 2d 408 (1992), --- U.S.
---, 112 S. Ct. 1771, 118 L. Ed. 2d 430 (1992), --- U.S. ---, 113
S. Ct. 361, 121 L. Ed. 2d 274 (1992).
19 S. Rep. No. 225, at 314 n.10, 1984 U.S.C.C.A.N. at 3492
n.10 (emphasis added).
20 Senator DeConcini expressed reservations about "the
provision [of � 2119] that makes the use of a firearm an
essential element of the crime". 138 Cong. Rec. S17,960 (daily
ed. Oct. 8, 1992) (emphasis added). Senator Pressler stated that
a related bill "represented a giant step forward in slowing down
auto theft by subjecting carjackers who use firearms to severe
8

2.
"During and in relation to" a "crime of violence"
Carjacking is always and without exception a "crime of
violence" as that term is defined in 18 U.S.C. � 924(c)(3). At
oral argument the government hypothesized that taking a car by
threats or intimidation while coincidentally possessing a firearm
would violate � 2119, but not � 924(c) because no violence was
used. We reject that hypothesis. No actual violence need occur
for a crime to be a "crime of violence" under � 924(c)(3); it is
enough that there is a "substantial risk" of physical force being
used against another's "person or property". Armed carjacking
always presents a substantial risk of force being used against a
victim reluctant to surrender his or her vehicle. Even those who
comply with the carjacker's demands are at substantial risk, as
demonstrated by the fate of William Mullers in this case.
We are left, then, with the government's argument that it is
possible to commit armed carjacking without using or carrying a
firearm "during and in relation to" a crime of violence. Of
course, because possession of a firearm is an element of
carjacking, a firearm will always be used or carried "during" the
offense. That leaves the requirement that the firearm be used or
carried "in relation to" the crime.
The government urges that a � 2119 conviction can rest on
"mere possession" of the firearm, regardless of whether the firearm
had any "relation to" the offense. At oral argument, the
government hypothesized that a defendant could violate � 2119 by
Federal criminal penalties". Id. (emphasis added).
9

taking a vehicle while carrying a pistol in his knapsack, even if
the pistol was never brandished. That scenario, however, does not
constitute "mere possession"; a firearm is obviously carried "in
relation to" a crime even if the defendant does not plan to use it
unless things go awry. A better example of "mere possession" would
be this: a would-be carjacker, carrying only a dagger and an empty
knapsack, demands that the victim, at knifepoint, surrender his
car. While the victim is complying, a passerby casually drops a
firearm into the carjacker's open knapsack, without the carjacker
noticing. Unquestionably the carjacker had "mere possession" of a
firearm during the offense. But can that admittedly unlikely
scenario be what Congress meant to punish when it condemned the
evils of "armed carjacking"? We think not. The firearm is central
to the crime of carjacking. Too tenuous a connection between the
firearm and the taking of the vehicle removes the defendant's
conduct from the range proscribed by � 2119. "Mere" possession of
the firearm is insufficient; some relation between the firearm and
the taking of the vehicle is required.21
The legislative history of � 2119 supports the view that a
firearm must be possessed "in relation to" the carjacking.22 The
House Judiciary Committee's report on the bill that became � 2119
defined "armed carjacking" this way:
21 Sabini, --- F. Supp. at ---, 1994 WL 31871, at *3;
Harwood, 834 F. Supp. at 951 n.1; Moore, 832 F. Supp. at 337.
Contra Payne, --- F. Supp. at ---, 1994 WL 9503, at *3-*4;
Zukinta, 830 F. Supp. at 421; McHenry, 830 F. Supp. at 1022.
22 See, e.g., supra note 20.
10

The most recent development in auto theft is "armed
carjacking." In these incidents, two or three criminals
approach a car waiting at a traffic light, or stopped by
means of a deliberate "fender-bender" accident, and force
the driver to turn over the keys at gunpoint.23
Representative Schumer, an initial sponsor of the legislation that
became � 2119, gave this description of the conduct at which the
bill was directed:
This bill . . . . would create a new offense for armed
carjacking--this is the most recent innovation in auto
theft, in which the criminal brazenly walks up to a car
waiting at a traffic light, points a gun at the driver,
and demands that the car be turned over.24
That � 2119 now requires that the gun be possessed "in
relation to" the offense is further demonstrated by the recent
introduction in Congress of legislation to repeal that
requirement.25 We conclude that a requirement that the firearm be
23 H.R. Rep. No. 851(I), 102d Cong., 2d Sess. 15, reprinted
in 1992 U.S.C.C.A.N. 2829, 2831 (emphasis added).
24 138 Cong. Rec. E800 (daily ed. Mar. 24, 1992) (emphasis
added).
25 Senators Lieberman and Pressler jointly introduced S. 942
for this purpose. Senator Lieberman described the need for the
new legislation this way:
We were all sickened by the Basu case--the carjacking
in suburban Maryland. It was the collective horror
over that case that prompted Congress last year to
federalize carjacking and provide stiff penalties for
the crime. Ironically, the law we passed last year
could not be used to prosecute that crime, even if it
had occurred after the law's enactment, because a gun
was not used in taking the car, although the carjacking
resulted in that innocent woman's death.
139 Cong. Rec. S5821 (daily ed. May 12, 1993) (emphasis added).
11

possessed "in relation to" the carjacking is implicit in � 2119.26
Therefore, proof of a violation of � 2119 always proves a violation
of � 924(c), and the two statutes fail the Blockburger "same
elements" test.
B.
Congress Clearly Indicated an Intent to Punish Cumulatively
Violations of �� 2119 and 924(c)27
Congress is presumed to know the Blockburger test and to
legislate with it in mind.28 Thus, when two statutes fail the
Blockburger test, a presumption arises that Congress intended only
a single punishment.29 That presumption can be overcome, however,
by a "clear indication of contrary legislative intent".30 Although
the issue is not free from doubt, we are satisfied that Congress
has clearly indicated its intent to punish cumulatively violations
of �� 2119 and 924(c).
26 Section 924(c) itself did not always contain the "in
relation to" language. After Congress added the phrase "in
relation to" to � 924(c), then-Judge Anthony Kennedy, speaking
for the Court of Appeals for the Ninth Circuit, held that the
amendment had merely made explicit a requirement that was always
implicit in the statute. See United States v. Stewart, 779 F.2d
538, 539-40 (9th Cir. 1985). Just as a requirement of a
relationship between the firearm and the offense was implicit in
� 924(c) before the 1984 amendment, so is it implicit today in
� 2119.
27 I am indebted to Judge Higginbotham for much of the
analysis and language of this section of the opinion.
28 Albernaz v. United States, 450 U.S. 333, 341-42 (1981).
29 See Whalen, 445 U.S. at 692.
30 Id. (emphasis added); see also Albernaz, 450 U.S. at 340
(1981).
12

1.
The Text of � 924(c)
We begin with the text � 924(c),31 which provides, in part,
that:
Whoever, during and in relation to any crime of violence
or drug trafficking crime (including a crime of violence
or drug trafficking crime which provides for an enhanced
punishment if committed by the use of a deadly or
dangerous weapon or device) . . . uses or carries a
firearm, shall, in addition to the punishment provided
for such crime of violence or drug trafficking crime, be
sentenced to imprisonment for five years, . . . .32
The italicized clause states that Congress intended for � 924(c)'s
five-year sentence to be imposed cumulatively with the punishment
for the predicate drug-related or violent crime.33 Accordingly,
� 924(c) clearly indicates Congress's intent to punish cumulatively
violations of �� 924(c) and 2119. That clear indication of
Congress's intent saves the statutes from the double jeopardy bar
even though they fail the Blockburger test.
We shall next deal with two objections to this conclusion, one
based on the legislative history of � 924(c) and the other based on
the chronological order in which �� 2119 and 924(c) were enacted.
Although neither objection is without force, we do not find them
persuasive.
31 The text of the statute is the best indicator of
Congress's intent to impose cumulative punishments. See United
States v. Zabaneh, 837 F.2d 1249, 1258 (5th Cir. 1988).
32 18 U.S.C. � 924(c)(1) (emphasis added).
33 See United States v. Gibbons, 994 F.2d 299, 301-02 (6th
Cir.), cert. denied, --- U.S. ---, 114 S. Ct. 202, 126 L. Ed. 2d
160 (1993); United States v. Mills, 835 F.2d 1262, 1264 (8th Cir.
1987) (per curiam).
13

2.
The Legislative History
The defendants/appellees' chief argument turns on the
legislative history of the 1984 amendments to 18 U.S.C. � 924(c).
They contend that the amendments limited the application of
� 924(c) to a certain class of statutes: those providing for a
higher "enhanced" sentence if a deadly weapon is used. The
district court agreed that the 1984 amendments had effectively
limited � 924(c).34
The defendants' argument is as follows. Section 924(c) was
revised in 1984 in part to overturn two Supreme Court decisions,
Simpson v. United States35 and Busic v. United States.36 Simpson and
Busic had held � 924(c) inapplicable to statutory offenses which
included their own "enhancement" provisions for the use of a
34 824 F. Supp. at 611. The limitation the district court
saw in the 1984 amendments was not quite the one urged by the
defendants. Although the district court discussed the Simpson
and Busic cases, it concluded that that portion of the
legislative history was "irrelevant here because carjacking has
no enhancement penalty for the use of a firearm". Id. Instead,
the district court noted that the 1984 amendments changed the
predicate offenses for the application of � 924(c) from "any
felony" to "any crime of violence". Id. We consider that change
unimportant to this case, because carjacking is plainly a "crime
of violence" within the meaning of � 924(c)(3).
35 435 U.S. 6 (1978).
36 446 U.S. 398 (1980).
14

firearm.37 The legislative history of the 1984 amendments stated
Congress's displeasure with those Court decisions:
[T]he Supreme Court's decisions in Simpson v. United
states, and Busic v. United States, have negated
[� 924(c)]'s use in cases involving statutes . . . which
have their own enhanced, but not mandatory, punishment
provisions in situations where the offense is committed
with a dangerous weapon. These are precisely the type of
extremely dangerous offenses for which a mandatory
punishment for the use of a firearm is the most
appropriate.
. . .[S]ubsection 924(c) should be completely revised to
ensure that all persons who commit Federal crimes of
violence, including those crimes set forth in statutes
which already provide for enhanced sentences for their
commission with a dangerous weapon, receive a mandatory
sentence, without the possibility of the sentence being
made to run concurrently with that for the underlying
offense or for any other crime and without the
possibility of a probationary sentence or parole.38
What Congress was concerned about in 1984, the defendants contend,
was the absence of mandatory minimum penalties for using a firearm
even when the statutes included an "enhancement" provision for the
37 The defendant in Simpson was convicted of bank robbery
under a statute which authorized an enhanced penalty (a maximum
fine of $10,000 instead of $5,000, and a maximum prison term of
25 years instead of 20) if the robbery was committed "by the use
of a dangerous weapon or device". 435 U.S. at 7. In Busic, the
defendants were convicted of assaulting a federal officer under a
statute which authorized an enhanced penalty (a maximum fine of
$10,000 instead of $5,000, and a maximum prison term of ten years
instead of three) if the defendant "use[d] a deadly or dangerous
weapon". 446 U.S. at 401 n.4. The Court in each case held that
those "enhancement" provisions could not be further enhanced by
adding to them the firearm penalties of � 924(c). 435 U.S. at
16; 446 U.S. at 411.
38 S. Rep. No. 225, at 312-13, 1984 U.S.C.C.A.N. at 3490-91
(footnotes omitted, emphasis added).
15

use of a firearm.39 The 1984 amendments to � 924(c) therefore laid
down a mandatory five-year minimum sentence. At the time � 2119
was enacted in 1992, however, mandatory minimum sentences were
required by the Sentencing Guidelines. Therefore, the defendants
conclude, the justification for the 1984 amendments to � 924(c)
does not apply to � 2119.
Although this reading of the 1984 amendments has some force,
we do not think it sufficient to support the defendants' position.
The statute uses the phrase "including a crime of violence or drug
trafficking crime which provides for an enhanced punishment if
committed by the use of a deadly or dangerous weapon or device".
Similar language appears in the legislative history quoted above.
The ordinary sense of the word "including" is "including, but not
limited to". Other parts of the legislative history also suggest
that Congress was not concerned exclusively with overturning
Simpson and Busic, but was merely using Simpson and Busic as
examples of how the judiciary had gone astray in interpreting
� 924(c). The portion of the legislative history quoted above
opens with the following sentence:
Part D of title X is designed to impose a mandatory
penalty without the possibility of probation or parole,
39 Section 2119 is not such an "enhancement" statute. The
kinds of statutes at issue in Simpson and Busic provided one
level of punishment if the offense was committed without a
dangerous weapon, and another higher punishment if a dangerous
weapon was used. Carjacking, however, as defined in � 2119,
always requires a gun. Thus, there is no "enhanced" sentence if
a gun is used; rather, if no gun is used, there is no violation
of � 2119.
16

for any person who uses or carries a firearm during and
in relation to a Federal crime of violence.40
That broad statement does not purport to limit the application of
� 924(c) to statutes containing an "enhancement" provision for the
use of a firearm. The use of "any person" in the text just quoted,
and the use of "all persons" in the earlier quotations from the
legislative history, make it clear that Congress wanted to stack
� 924(c)'s punishment atop all predicate crimes that came within
the statute, not just the Simpson/Busic variety of predicate crimes
for which the statutes included "enhancement" provisions.41 Because
40 S. Rep. No. 225, at 312, 1994 U.S.C.C.A.N. at 3490
(emphasis added).
41 In 1981, Congress considered and rejected an amendment to
� 924(c) that would have excluded from its reach those statutes,
like � 2119, in which use or possession of a deadly weapon was
already an element of the predicate offense. The Senate report
on the 1981 crime bill discussed the effect of the proposed
revision to � 924(c):
[T]he purpose of this section [� 924(c)] is to create a
separate basis of criminal liability for the possession
or employment of any firearm, destructive device, or
dangerous weapon in the commission of a crime because
of the potential danger posed to human life by such
conduct. . . . Where, however, the nature of the
offense itself involves using or possessing a weapon,
the factor of potential danger to life has already been
taken into account, and there is no reason to permit
the pyramiding of offenses and punishment through
application of this section. Accordingly, the
Committee does not intend that this section be
construed to apply where the underlying offense is one
involving the use or possession of a weapon of the type
here covered . . . .
S. Rep. No. 307, 97th Cong., 1st Sess. 890, microformed on Sup.
Docs. No. Y 1.1/5:97-307 (U.S. Gov't Printing Office). Congress
rejected the proposed change to � 924(c), suggesting that
Congress intended � 924(c) to apply even when use of a deadly
17

carjacking is a "crime of violence" under � 924(c)(3), we hold that
Congress clearly indicated its intent to cumulate the punishment of
� 924(c) with the punishment of � 2119.
3.
The Chronological Order of the Statutes
We turn next to an objection not raised by the defendants, but
considered persuasive by many of the district courts that have
found a double jeopardy violation in cases involving �� 2119 and
924(c). These courts have noted that � 2119 is the newer statute,
having been enacted two years after the most recent amendments to
� 924(c). Because � 2119 does not refer to � 924(c), according to
this line of reasoning, cumulative punishments for carjacking and
the firearms charge are not clearly indicated.
The district court in this case stated that "[a]s the more
specific statute and the later expression of Congress, section
2119, `carjacking', takes precedence over the general firearm
statute, section 924(c)".42 The district court in United States v.
Moore also thought the order of the statutes' enactment
dispositive:
If � 924(c)(1) had been enacted after � 2119, instead of
vice versa, there might be an argument that Congress
intended to punish the same conduct twice. However, this
court is as unwilling to conclude that Congress intended
in 1992 to do in a convoluted and strained way what it
could so easily have accomplished by the use of plain
weapon was already an element of the predicate offense.
42 824 F. Supp. at 611.
18

English as it is to doubt Congressional constitutional
understanding.43
This line of reasoning relies on two crucial facts. First,
� 2119 is the newer statute, and second, � 2119 does not refer to
� 924(c). We consider neither fact sufficient to support the
conclusion that double jeopardy bars cumulative punishments for
violating �� 2119 and 924(c). Congress may make a plain statement
of its intent to stack punishments in a specified class of crimes
as it did in � 924(c). Once Congress does that, it need not
reiterate that intent in any subsequent statutes that fall within
the previously defined class. The Moore approach would require
Congress to repeat itself, restating in each subsequent enactment
an intention Congress thought it clearly expressed once already.
We see no reason to require such a convoluted approach to
lawmaking. Even if we were disposed to do so, however, we could
not adopt the Moore approach without placing ourselves in tension
with two lines of established authority. First, the Moore approach
is in tension with Missouri v. Hunter,44 in which the Supreme Court
upheld two Missouri statutes against a double jeopardy challenge.
One of the two statutes criminalized robbery; the other, similar in
purpose to � 924(c), imposed an enhanced penalty on those guilty of
"armed criminal action". In sustaining the two statutes against a
double jeopardy challenge, the Court did not require the Missouri
legislature to make a clear statement for enhancement in each
43 Moore, 832 F. Supp. at 337.
44 459 U.S. 359 (1983).
19

statute, but only in the general enhancement provision itself. The
Court's reasoning suggests that once Congress has stated a general
intention to impose cumulative punishments in � 924(c), it need not
do so again in � 2119.
Second, the Moore approach is in tension with a line of cases
upholding cumulative punishments under � 924(c) and 18 U.S.C.
� 2113, the federal bank robbery statute. As the government's
brief points out, several Circuits, including this one, have held
that � 924(c) expressly authorizes cumulative punishments under
�� 2113 and 924(c) notwithstanding the absence of any mention of
cumulation in � 2113 itself.45 Congress was no doubt aware of those
cases when it expressly modeled � 2119 on federal robbery statutes
like � 2113.46 To hold that � 924(c) authorizes cumulative
punishment with � 2113 but not with � 2119 would be to establish
45 See, e.g., United States v. Lanzi, 933 F.2d 824, 825-26
(10th Cir. 1991); United States v. Holloway, 905 F.2d 893, 894-95
(5th Cir. 1990); United States v. Harris, 832 F.2d 88 (7th Cir.
1987); United States v. Shavers, 820 F.2d 1375, 1377-78 (4th Cir.
1987); United States v. Blocker, 802 F.2d 1102, 1104-05 (9th Cir.
1986); United States v. Doffin, 791 F.2d 118, 120-21 (8th Cir.),
cert. denied, 479 U.S. 861 (1986).
46 The House Judiciary Committee's report on � 2119
indicates that federal robbery statutes like � 2113 served as
models for the new carjacking statute:
This Section creates a new federal offense for armed
carjacking, punishable by imprisonment for up to 15
years. The definition of the offense tracks the
language used in other federal robbery statutes (18
U.S.C. � 2111, 2113, and 2218). The offender must
possess a firearm during the crime, and the stolen
automobile must have moved in interstate commerce.
H.R. Rep. No. 851(I), at 17, 1992 U.S.C.C.A.N. at 2834.
20

different standards for statutes Congress intended to be treated
the same.
Congress's authorization of multiple punishments in � 924(c)
establishes a general rule of enhancement from which Congress is
free to depart in later statutes if it chooses. Absent language
expressing a departure from � 924(c), however, we must read the
later enacted statutes in harmony with Congress's previously
expressed intent to impose cumulative punishments.47 Accordingly,
we hold that Congress may clearly indicate its intent to impose
cumulative punishments in either of two challenged statutes; it
need not do so in both. We further hold that the order in which
the statutes are enacted is irrelevant to the analysis--as long as
Congress has clearly indicated an intent to impose cumulative
punishments in either statute, the statutes pass constitutional
muster.
47 We agree with the district court's assessment of this
argument in United States v. Sabini:
Congress has already made clear its intent of
permitting cumulative punishment under section 924(c),
through the 1984 amendment to section 924(c). Nothing
in the previously discussed Supreme Court cases
requires Congress to reassert such intent as to
subsequently enacted statutes that involve firearms.
Therefore, Congress' failure to explicitly address the
interplay of the two statutes when it enacted section
2119 does not serve to negate the broad intent: of
section 924(c).
Sabini, --- F. Supp. at ---, 1994 WL 31871, at *5.
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III.
This is a close case and we do not consider the analysis we
have given of �� 2119 and 924(c) to be the only one a reasonable
mind could accept. The issues involved are important and have
provoked thoughtful debate among the members of the panel. We are
satisfied, however, that Congress has made a sufficiently clear
indication of its intent to impose cumulative punishments for
violations of � 924(c) and all crimes of violence, including
"carjacking", to satisfy the requirements of the Double Jeopardy
Clause. Accordingly, we REVERSE the district court's dismissal of
Count III of the indictments in this case, and REMAND the case to
the district court with instructions to reinstate those charges.48
48 The defendants/appellees also face state charges for
murder and kidnapping arising out of the events of November 15,
1992. For that reason, the Texas Criminal Defense Lawyers
Association and the National Association of Criminal Defense
Lawyers, as amici curiae, invite us to reconsider the
constitutionality of the "dual sovereignty" exception to double
jeopardy in this case. We decline the invitation. None of the
appellants raised the constitutionality of the "dual sovereignty"
exception in their briefs, and we generally do not allow amici to
raise issues not raised by the parties absent exceptional
circumstances. See Resident Council of Allen Parkway Village v.
United States Dep't of Housing & Urban Development, 980 F.2d
1043, 1049 (5th Cir.), cert. denied, --- U.S. ---, 114 S. Ct. 75,
126 L. Ed. 2d 43 (1993). Even if the constitutionality of the
"dual sovereignty" doctrine were properly before us, however, we
are bound by Supreme Court precedent upholding the doctrine.
See, e.g., Heath v. Alabama, 474 U.S. 82 (1985). It is to that
Court amici must address their arguments.
22