Shane Elsmore Bear Heels v. United States

993 F.2d 1325, 1993 U.S. App. LEXIS 10057, 1993 WL 135564

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 3, 1993
• Docket: 92-3550
• Status: Published

Opinion

PER CURIAM.

Shane E. Bear Heels, a federal inmate, appeals the district court’s 1 denial of his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. We affirm.

In 1989, a jury convicted Bear Heels of armed assault on a federal officer in violation of 18 U.S.C. § 111 (Count I), and of using a firearm in the commission of a violent felony in violation of 18 U.S.C. § 924(c) (Count II). The district court sentenced Bear Heels to consecutive prison terms of twenty-one months on Count I and five years on Count II.

In this section 2255 motion, Bear Heels claimed that the consecutive sentences constituted double jeopardy because the court effectively imposed two penalties for the same crime. Relying on our previous rejection of a similar double jeopardy argument, see United States v. Mills, 835 F.2d 1262, 1264 (8th Cir.1987) (per curiam), the district court denied the motion.

On appeal, Bear Heels argues that, in enacting section 924(c), Congress did not intend to create a separate crime that would support a conviction for a separate offense. We disagree. See S.Rep. No. 225, 98th Cong., 1st Sess. 312 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3490 (“Section 924(c) sets out an offense distinct from the underlying felony and is not simply a penalty provision.”).

Accordingly, we affirm.

1 . The Honorable Donald J. Porter, Senior United States District Judge for the District of South Dakota, adopting the report and recommendations of the Honorable Laurence J. Zastrow, United States Magistrate Judge for the District of South Dakota.