United States Court of Appeals,

                          Fifth Circuit.

                             No. 96-50882.

          UNITED STATES of America, Plaintiff-Appellee,

                                  v.

          Johnny Candido MANSOLO, Defendant-Appellant.

                          Nov. 18, 1997.

Appeal from the United States District Court for the Western
District of Texas.

Before WISDOM, SMITH and DeMOSS, Circuit Judges.

     DeMOSS, Circuit Judge:

     On April 19, 1996, Appellant Johnny Mansolo was involved in a

gun-shooting incident. The police subsequently discovered that the

gun used by Mansolo had been stolen and that its serial number had

been filed off.   As a result, Mansolo was indicted on two counts:

possession of a stolen firearm in violation of 18 U.S.C. § 922(j),

and possession of a firearm with an obliterated serial number in

violation of 18 U.S.C. § 922(k).       A jury convicted Mansolo on both

counts on August 20, 1996.

     On November 7, 1996, Mansolo received 120 months imprisonment

under the § 922(j) count, and 30 months imprisonment under the §

922(k) count, the latter running consecutively to the former.

Mansolo was also ordered to serve a three-year term of supervised

release as to each count, to be served concurrently.       Finally, he

was fined in the amount of $1,000 as to each count and subjected to

a mandatory assessment of $200.

     Mansolo appeals claiming that his convictions and sentences

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arising from one indictment alleging violations of two separate

subsections of § 922 violate the Double Jeopardy Clause of the

Constitution.     Mansolo       also    claims      that   the   imposition   of

consecutively running sentences was in error.

                                        I.

      Mansolo argues that his separate convictions under § 922(j)

and § 922(k) violate principles of double jeopardy.1                He cites the

familiar Blockburger rule, noting that "where the same act or

transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there are

two offenses or only one, is whether each provision requires proof

of a fact which the other does not."               United States v. York, 

, 1058 (5th Cir.1989) (citing                 Blockburger v. United

States, 

, 304, 

, 182, 

(1932)).

Relying on this Circuit's decision in United States v. Munoz-Romo,

(5th Cir.1993), Mansolo asserts that "violating two

subsections of 18 U.S.C. § 922 is not, in the sense contemplated by

the Supreme Court in Blockburger, "a violation of two distinct

statutory   provisions.'    "      He       thus   insists   that   consecutive

sentences for convictions under different subsections of § 922 for

possession of a single gun on a single occasion are multiplicious

and violate congressional intent.

     However, this Court has previously held in United States v.

Nation, 

(5th Cir.1987), that separate sentences are

      1
       While Mansolo did not raise this objection at trial, the
parties are in agreement that this does not bar appellate review.
See United States v. Corona, 

, 572 (5th Cir.1997).

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permitted for separate violations of § 922(g)(1) (shipping and

transporting of a firearm by a convicted felon) and § 922(i)

(shipping and transporting a stolen firearm) because each violation

requires proof of different elements.   As in the Nation case, the

separate sections of § 922 which Mansolo violated each require

proof of different elements.2

        Our task therefore is to determine whether the holding in

Munoz-Romo or the holding in Nation controls our decision in this

case.     We conclude that Munoz-Romo is not controlling.    First,

because Munoz-Romo involved clearly different statutory provisions

(§ 922(g)(1) & (5)), that holding does not necessarily control the

result in this case.    Furthermore, Munoz-Romo involved different

subparts of a single subsection of § 922, while this case involves

two separate subsections of § 922.

        The Nation case is certainly closer to the circumstances

involved in this case than Munoz-Romo, and the two cases' holdings

are not inconsistent.    The decision in Nation was based solely on

the Blockburger analysis.    The subsequent Munoz-Romo case adds to

the analysis an additional inquiry as to whether Congress intended

separate sentences to be imposed for violations of the separate

crimes.     The conclusion reached in Munoz-Romo depended on the

determination that the "language and structure of § 922(g) disclose

a clear Congressional intent not to impose cumulative punishments

    2
     A conviction under § 922(j) requires proof that the defendant
knew the firearm was stolen, while a conviction under § 922(k) does
not. A conviction under § 922(k) requires proof that the serial
number of the firearm was obliterated, while a conviction under §
922(j) does not.

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when, because of the offender's status, possession of a single

weapon violates two subdivisions of subsection (g)."             

.   We    read   Munoz-Romo,    and   particularly    the

references therein to the Eleventh Circuit's decision in United

States v. Winchester, 

(1990), as focusing its analysis

on whether Congress fixed a separate punishment for each of the

subsections of § 922 involved, and if so whether Congress fixed a

separate punishment for any subpart of each such subsection.

Clearly, Congress has fixed separate punishments for both § 922(j)

and § 922(k), see 18 U.S.C. § 924(a)(1)(B) & (a)(2), and there are

no subparts to either § 922(j) or (k).              Therefore this case is

virtually indistinguishable from Nation, which involved § 922(g)(1)

and § 922(i).      Thus, we hold that there was no error in permitting

Mansolo to be tried and convicted under both 18 U.S.C. § 922(j) and

18 U.S.C. § 922(k).

                                      II.

       The statutory maximum sentence for violations of 18 U.S.C. §

922(j) is    120    months    of   confinement.     The    statutory   maximum

sentence for violations of 18 U.S.C. § 922(k) is 60 months of

confinement.      Mansolo was convicted of violations of both of these

subsections of § 922, and was given consecutive sentences which

resulted in a total sentence of 150 months of confinement.                The

district court sentenced Mansolo to the maximum sentence for the

violation of § 922(j), 120 months, and then an additional 30 months

of confinement for the violation of § 922(k).               Mansolo contends

that because the combined sentences for the two convictions exceed


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the greater of the two statutory maximums, the sentence was imposed

in error.

        Plain error review applies on this point.                No objection was

registered at trial.          In order to redress errors to which there was

no objection at trial, the Court must ascertain that (1) there was

error, (2) the error was plain, (3) the error affects substantial

rights, and (4) if not corrected, the error would seriously affect

"the    fairness,       integrity     or   public    reputation        of    judicial

proceedings."       United States v. Olano, 

, 731-32, 

, 1776, 

(1993).

       Based   upon     Mansolo's    total     offense   level    of    26    and   his

criminal history category of VI, the sentencing range imposed by

the Guidelines was 120 to 150 months.               See U.S.S.G. ch. 5, pt. A

(1995) (sentencing table).           The district court imposed a sentence

at   the   high   end    of    the   permitted    range,   and    the       Sentencing

Guidelines plainly provide:

       If the sentence imposed on the count carrying the highest
       statutory maximum is less than the total punishment, then the
       sentence imposed on one or more of the other counts shall run
       consecutively, but only to the extent necessary to produce a
       combined sentence equal to the total punishment. In all other
       respects sentences on all counts shall run concurrently,
       except to the extent otherwise required by law.

U.S.S.G. § 5G1.2(d) (1995).

       Rollins v. United States, 

(5th Cir.1976), cited

by Mansolo, is inapposite.             Rollins involved the imposition of

cumulative sentences for the possession of an unregistered firearm

in violation of 26 U.S.C. § 5861(d) and possession of a firearm

with an unidentified serial number in violation of 28 U.S.C. §


                                           5
5861(i).   Unlike the situation presented by Mansolo's case, in

Rollins it   was   unnecessary   to       offer   any   additional   proof   to

establish the violation of one of the charged offenses if the other

had been proved. In other words, consecutive sentences for the two

offenses charged in Rollins would have violated the Double Jeopardy

Clause under Blockburger.        Thus, the situation in Rollins is

distinguishable from the present case.

     There does not appear to be any error below—certainly not any

error that would rise to the plain error standard.

                                  III.

     Accordingly, the judgment of the district court is AFFIRMED.




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